<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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FOR THE FISCAL YEAR ENDED COMMISSION FILE NUMBER
DECEMBER 31, 1998 0-20469
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U.S. TRUST CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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NEW YORK 13-3818952
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
114 WEST 47TH STREET, NEW YORK, NEW YORK 10036
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (212) 852-1000
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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 Shares, Par Value $1 Per Share, Nasdaq National Market
(Title of Class and name of each exchange on which registered)
Rights to Purchase Series A Participating Cumulative Preferred Shares,
Nasdaq National Market
(Title of Class and name of each exchange on which registered)
------------------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No __
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
State the aggregate market value of the voting and non-voting common equity held
by non-affiliates of the registrant. The aggregate market value shall be
computed by reference to the price at which the common equity was sold, or the
average bid and asked prices of such common equity, as of a specified date
within 60 days prior to the date of filing. (See definition of affiliate in Rule
405, 17 CFR 230.405.)
$1,357,621,223 as of January 31, 1999
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date.
18,597,551 Common Shares, Par Value $1 Per Share, as of January 31, 1999.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Annual Report to Shareholders for the fiscal year ended December
31, 1998 are incorporated by reference into Parts I and II. Portions of the
Definitive Proxy Statement for the Annual Meeting of Shareholders to be held
April 27, 1999 are incorporated by reference into Part III.
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10-K CROSS-REFERENCE INDEX
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Page
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PART I
Item 1 Business.................................................... 38-48, 55-57,(a)
Item 2 Properties.................................................. 48,(a)
Item 3 Legal Proceedings........................................... 48,(a)
Item 4 Submission of Matters to a Vote of Security Holders......... (b)
PART II
Item 5 Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 74,(a)
Item 6 Selected Financial Data..................................... 76,(a)
Item 7 Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 37-49,(a)
Item 7A Quantitative and Qualitative Disclosures About Market
Risk........................................................ 45-46, 64,(a)
Item 8 Financial Statements and Supplementary Data................. 50-74,(a)
Item 9 Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... (b)
PART III
Item 10 Directors and Executive Officers of the Registrant.......... 81,(a),(c)
Item 11 Executive Compensation...................................... (c)
Item 12 Security Ownership of Certain Beneficial Owners and
Management.................................................. (c)
Item 13 Certain Relationships and Related Transactions.............. (c)
PART IV
Item 14 Exhibits, Financial Statement Schedules, and Reports on Form
8-K......................................................... 84-87,(d)
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(a) Incorporated by reference to the Annual Report to Shareholders for the
fiscal year ended December 31, 1998.
(b) Nothing to report.
(c) Incorporated by reference to the definitive Proxy Statement for the Annual
Meeting of Shareholders to be held April 27, 1999.
(d) Reports on Form 8-K: Nothing to report. Other schedules are omitted because
the required information either is not applicable or is not present in
amounts sufficient to require submission of schedule.
2
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EXHIBITS
INDEX OF EXHIBITS
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Exhibit No. Item
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3.1 Restated Certificate of Incorporation of the Corporation,
filed as Exhibit 4(b) to the Corporation's Registration
Statement on Form S-8 (Registration No. 33-62371).(1)
3.2 By-Laws of the Corporation, filed as Appendix II to the
Corporation's Registration Statement on Form 10 dated
February 9, 1995.(1)
4 Note: The exhibits filed herewith do not include the
instruments with respect to long-term debt of the
Corporation and its subsidiaries, inasmuch as the total
amount of debt authorized under any such instrument does not
exceed 10% of the total assets of the Corporation and its
subsidiaries on a consolidated basis. The Corporation
agrees, pursuant to Item 601 (b)(4)(iii) of Regulation S-K,
that it will furnish a copy of any such instrument to the
Securities and Exchange Commission upon request.
4.1 Rights Agreement, dated as of September 1, 1995, between the
Corporation and First Chicago Trust Company of New York, as
Rights Agent, filed on September 5, 1995 as Exhibit 1 to the
Corporation's Registration Statement on Form 8-A for the
registration under Section 12(g) of the Securities Exchange
Act of 1934 of Rights to Purchase the Corporation's Series A
Participating Cumulative Preferred Shares (the "8-A").(1)
4.2 Specimen certificate representing Rights to Purchase the
Corporation's Series A Participating Cumulative Preferred
Shares, filed on September 5, 1995 as Exhibit B to Exhibit 1
to the 8-A.(1)
10.1 Sublease agreement, dated September 1, 1995, between The
Chase Manhattan Bank (National Association), as Sublessor,
and United States Trust Company of New York (the "Trust
Company"), as Sublessee, covering space at 770 Broadway, New
York, New York, filed as Exhibit 10.1 to the Corporation's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995 (the "1995 10-Q").(1)
10.2 Lease, dated as of September 10, 1987, between 46-47
Associates, as Lessor, and the predecessor to the Trust
Company ("USTNY"), as Lessee, covering space at 114 West
47th Street, New York, New York; letters modifying the terms
of such Lease dated, respectively, September 10, 1987 and
October 2, 1989; Subordination Agreement dated as of
September 10, 1987 between USTNY and 1133 Building Corp.
subordinating to such Lease a ground lease with respect to
the property subject to such Lease; Right of First Refusal
dated as of September 10, 1987 between USTNY and the Lessor
respecting the construction of an annex (at 130 West 47th
Street, New York, New York) adjacent to the property subject
to such Lease and which annex is to be subject to such
Lease; and Agreement dated as of September 10, 1987 among
USTNY, the Lessor and 1155 Office Building Corp. under which
USTNY and the Lessor may exercise an option to purchase
property (at 132 West 47th Street, New York, New York)
contiguous to the property subject to such Lease, all filed
as Exhibit (10)(k) to the former U.S. Trust Corporation's
("UST") Annual Report on Form 10-K (Commission File No.
0-8709) for the fiscal year ended December 31, 1989.(1)
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(1) Incorporated herein by reference.
3
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INDEX OF EXHIBITS -- (CONTINUED)
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Exhibit No. Item
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10.3 Lease modification agreement dated December 7, 1987, between
46-47 Associates, as Lessor, and USTNY, as Lessee;
Modification of Annex Agreement dated December 7, 1987,
between 46-47 Associates and USTNY; Modification of Right of
First Refusal Agreement dated December 7, 1987, between 1133
Building Corp. and USTNY, filed as Exhibit 10.5 to UST's
Annual Report on Form 10-K (Commission File No. 0-8709) for
the fiscal year ended December 31, 1993 (the "1993
10-K").(1)
10.4 Confirmation and Clarification Agreement dated March 10,
1992, between 46-47 Associates, as Lessor, and USTNY, as
Lessee, amending the lease agreement dated September 10,
1987, filed as Exhibit 10.6 to the 1993 10-K.(1)
10.5 Clarification of Lease Modification Agreement dated March
24, 1992, between 46-47 Associates, as Lessor, and USTNY as
Lessee; Clarification of Right of First Refusal Agreement
dated March 24, 1992, between 1133 Building Corp. and USTNY;
Termination of Annex Agreement dated March 24, 1992, between
46-47 Associates and USTNY; Agreement dated March 24, 1992,
between 46-47 Associates and USTNY; Grant of Easement and
Zoning Lot and Development Agreement dated March 24, 1992,
between 46-47 Associates and 1133 Building Corp., and
Indenture dated March 24, 1992, between 46-47 Associates and
David Puchall, filed as Exhibit 10.7 to the 1993 10-K.(1)
10.6 Second Lease Modification Agreement dated May 10, 1993,
between 46-47 Associates, as Lessor, and USTNY, as Lessee,
amending the lease agreement dated September 10, 1987 (see
Exhibit 10.2 above), filed as Exhibit 10.8 to the 1993
10-K.(1)
10.7 License agreement between 46-47 Associates and USTNY for
space in Cellar 201 at 114 West 47th Street, New York, New
York, filed as Exhibit 10.9 to UST's Annual Report on Form
10-K (Commission File No. 0-8709) for the fiscal year ended
December 31, 1994.(1)
10.8 Third Lease Modification Agreement dated September 1, 1997,
between 46-47 Associates L.L.C., as Lessor and the Trust
Company, as Lessee, amending the lease agreement dated
September 10, 1987 (see Exhibit 10.2 above).
10.9 Fourth Lease Modification Agreement dated August 31, 1998,
between 46-47 Associates L.L.C., as Lessor and the Trust
Company, as Lessee, amending the lease agreement dated
September 10, 1987 (see Exhibit 10.2 above).
10.10 Agreement of Lease dated December 21, 1998, between Newport
Office Center III Company LLC, as Lessor, and U.S. Trust
Company of New Jersey, as Lessee, for space in the Newport
Office Center in Jersey City, New Jersey.
10.11 Services Agreement between USTNY and the Trust Company,
dated September 1, 1995, filed as Exhibit 2.6 to Amendment
No. 1, dated December 27, 1995 to the 1995 10-Q.(1)
EXECUTIVE COMPENSATION PLANS AND ARRANGEMENTS
10.12 U.S. Trust Corporation Stock Plan for Non-Officer Directors,
as amended and restated effective as of September 1, 1995,
filed as Exhibit 10.8 to the 1995 10-Q.(1)
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(1) Incorporated herein by reference.
4
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INDEX OF EXHIBITS -- (CONTINUED)
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Exhibit No. Item
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10.13 1989 Stock Compensation Plan and Predecessor Plans of the
Corporation, as amended and restated through July 1, 1997,
filed as Exhibit 10.9 to the Corporation's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1997.(1)
10.14 Amendment, effective January 1, 1998, to the 1989 Stock
Compensation Plan and Predecessor Plans of the Corporation,
as amended and restated through July 1, 1997.
10.15 Benefit Equalization Plan of the Corporation, as amended and
restated effective as of January 1, 1997, filed as Exhibit
10.10 to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997.(1)
10.16 Amendment, effective April 28, 1998, to the Benefit
Equalization Plan of the Corporation, as amended and
restated effective as of January 1, 1997.
10.17 Amendment, effective January 1, 1999, to the Benefit
Equalization Plan of the Corporation, as amended and
restated effective as of January 1, 1997 and amended
effective April 28, 1998.
10.18 Board Members' Deferred Compensation Plan of the
Corporation, as amended and restated through January 1,
1997, filed as Exhibit 10.12 to the Corporation's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997.(1)
10.19 Amendment, effective April 28, 1998, to the Board Members'
Deferred Compensation Plan of the Corporation, as amended
and restated through January 1, 1997.
10.20 Incentive Award Plan of the Trust Company and Affiliated
Companies as amended and restated effective as of September
1, 1995, filed as Exhibit 10.14 to the 1995 10-Q.(1)
10.21 1995 Annual Incentive Plan of the Trust Company and
Affiliated Companies, as amended and restated effective
January 1, 1996, filed as Exhibit 10.15 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (the "1996 10-K").(1)
10.22 Amendment, effective January 1, 1999, to the 1995 Annual
Incentive Plan of the Trust Company and Affiliated
Companies, as amended and restated effective January 1,
1996.
10.23 1990 Change in Control and Severance Policy for Top Tier
Officers of the Trust Company and Affiliated Companies as
amended and restated effective as of October 22, 1996, filed
as Exhibit 10.16 to the 1996 10-K.(1)
10.24 1990 Change in Control and Severance Policy for Officers and
Employees of the Trust Company and Affiliated Companies as
amended and restated effective as of October 22, 1996, filed
as Exhibit 10.17 to the 1996 10-K.(1)
10.25 Executive Deferred Compensation Plan of the Corporation, as
amended and restated through July 1, 1997, filed as Exhibit
10.18 to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997.(1)
10.26 Amendment, effective April 28, 1998, to the Executive
Deferred Compensation Plan of the Corporation, as amended
and restated effective through July 1, 1997.
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(1) Incorporated herein by reference.
5
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INDEX OF EXHIBITS -- (CONTINUED)
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Exhibit No. Item
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10.27 Amendment, effective January 1, 1999, to the Executive
Deferred Compensation Plan of the Corporation, as amended
and restated effective through July 1, 1997 and amended
effective April 28, 1998.
10.28 Executive Incentive Plan of the Corporation, as adopted
effective January 1, 1997, filed as Exhibit 10.19 to the
Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.(1)
10.29 Amendment, effective January 1, 1999, to the Executive
Incentive Plan of the Corporation, as adopted effective
January 1, 1997.
10.30 1995 Stock Option Plan of the Corporation, as amended and
restated effective November 1, 1996, filed as Exhibit 10.20
to the 1996 10-K.(1)
10.31 Agreements re supplemental retirement benefits for H.
Marshall Schwarz, Jeffrey S. Maurer and Frederick B. Taylor,
as amended and restated as of August 29, 1995, filed as
Exhibit 10.21 to the 1995 10-Q.(1)
10.32 Deferred Restricted Unit Plan of the Corporation, as adopted
effective January 1, 1997, filed as Exhibit 10.22 to the
Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.(1)
10.33 Amendment, effective January 1, 1998, to the Deferred
Restricted Unit Plan of the Corporation, as adopted
effective January 1, 1997.
10.34 Form of Benefits Protection Agreement for H. Marshall
Schwarz, Jeffrey S. Maurer and Frederick B. Taylor, filed as
Exhibit 10.23 to the Corporation's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997.(1)
10.35 Form of Benefits Protection Agreement, filed as Exhibit
10.24 to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997.(1)
10.36 Benefits Protection Agreement for Maribeth S. Rahe, filed as
Exhibit 10.25 to the Corporation's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997.(1)
13 1998 Annual Report to Shareholders
21 List of Subsidiaries of the Corporation
23 Consent of Independent Accountants
27 Financial Data Schedule
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(1) Incorporated herein by reference.
The Corporation will furnish copies of any and all exhibits to this Form
10-K without charge to stockholders requesting such information.
This Report has been prepared in accordance with the rules and regulations
of the Securities and Exchange Commission, and the financial statements have
been prepared in accordance with such rules and regulations and with generally
accepted accounting principles, by officers and employees of the Corporation and
its affiliates. This has been done under the general supervision of Richard E.
Brinkmann, Comptroller and Chief Planning Officer, who has executed this Report
on the Corporation's behalf. It has been reviewed by other operating and staff
personnel of the Corporation and such affiliates and by counsel. The
consolidated financial statements have been audited by PricewaterhouseCoopers
LLP, independent certified public accountants, as indicated in their report.
This Report contains much detailed information, of which the various
signatories cannot and do not have independent personal knowledge. The
signatories believe, however, that the preparation and review process summarized
above are such as ordinarily to afford reasonable assurance of compliance with
applicable requirements.
6
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
U. S. TRUST CORPORATION
(Registrant)
By: /s/ RICHARD E. BRINKMANN
---------------------------------------
Richard E. Brinkmann
Comptroller and Chief Planning Officer
Dated: March 10, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
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Signature Title Date
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/s/ H. MARSHALL SCHWARZ Chairman of the Board March 10, 1999
- --------------------------------------------------- and Director (Chief
H. Marshall Schwarz Executive Officer)
/s/ JOHN L. KIRBY Treasurer and Chief March 10, 1999
- --------------------------------------------------- Financial Officer
John L. Kirby
/s/ RICHARD E. BRINKMANN Comptroller and March 10, 1999
- --------------------------------------------------- Chief Planning Officer
Richard E. Brinkmann (Chief Accounting Officer)
/s/ ELEANOR BAUM Director March 10, 1999
- ---------------------------------------------------
Eleanor Baum
/s/ SAMUEL C. BUTLER Director March 10, 1999
- ---------------------------------------------------
Samuel C. Butler
/s/ PETER O. CRISP Director March 10, 1999
- ---------------------------------------------------
Peter O. Crisp
/s/ PHILIPPE DE MONTEBELLO Director March 10, 1999
- ---------------------------------------------------
Philippe de Montebello
/s/ ROBERT E. DENHAM Director March 10, 1999
- ---------------------------------------------------
Robert E. Denham
/s/ ANTONIA M. GRUMBACH Director March 10, 1999
- ---------------------------------------------------
Antonia M. Grumbach
/s/ FREDERIC C. HAMILTON Director March 10, 1999
- ---------------------------------------------------
Frederic C. Hamilton
/s/ PETER L. MALKIN Director March 10, 1999
- ---------------------------------------------------
Peter L. Malkin
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Signature Title Date
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/s/ JEFFREY S. MAURER Director March 10, 1999
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Jeffrey S. Maurer
/s/ DAVID A. OLSEN Director March 10, 1999
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David A. Olsen
/s/ CARL H. PFORZHEIMER III Director March 10, 1999
- ---------------------------------------------------
Carl H. Pforzheimer III
/s/ MARIBETH S. RAHE Director March 10, 1999
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Maribeth S. Rahe
/s/ PHILIP L. SMITH Director March 10, 1999
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Philip L. Smith
/s/ JOHN HOYT STOOKEY Director March 10, 1999
- ---------------------------------------------------
John Hoyt Stookey
/s/ FREDERICK B. TAYLOR Director March 10, 1999
- ---------------------------------------------------
Frederick B. Taylor
/s/ ROBERT N. WILSON Director March 10, 1999
- ---------------------------------------------------
Robert N. Wilson
/s/ RUTH A. WOODEN Director March 10, 1999
- ---------------------------------------------------
Ruth A. Wooden
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8
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Exhibit 10.8
THIRD LEASE MODIFICATION AGREEMENT
This Third Lease Modification Agreement (the "Agreement"), dated as
of the 1st day of September, 1997, between 46-47 ASSOCIATES L.L.C., a New York
limited liability company, having offices at 1155 Avenue of the Americas, New
York, New York 10036 (the "Landlord"), and UNITED STATES TRUST COMPANY OF NEW
YORK, a New York banking corporation, having offices at 114 West 47th Street,
New York, New York (the "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord (formerly known as 46-47 Associates) is the
landlord, and Tenant is the successor-in-interest to the tenant, under that
certain lease (such lease, as thereafter modified, being herein called the
"Lease") dated as of September 10, 1987, a memorandum of which was recorded in
Reel 1290, Page 1488, in the office of the City Register of the County of New
York (the "Register's Office"), covering the premises more particularly
described in the Lease; and
WHEREAS, Landlord and Tenant entered into that certain lease
modification agreement dated as of December 7, 1987, modifying Exhibit B of the
Lease, which lease modification agreement was recorded in Reel 1374, page 1722,
in the Register's Office; and
WHEREAS, Landlord and Tenant entered into that certain Second Lease
Modification Agreement dated as of May 10, 1993, a memorandum of which was
recorded in Reel 1981, Page 803, in the Register's Office; and
WHEREAS, Landlord and Tenant wish to make certain additional
modifications to the Lease and to clarify certain understandings, in the manner
hereinafter set forth.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Lease.
2. Section 6.01D of the Lease is hereby modified so that the
following new language shall be deemed to be, and hereby is, added thereto:
Tenant agrees that the cleaning contractor for the Building may be
Landlord or a division or affiliate of Landlord.
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Landlord and Tenant agree that, effective as of January 1, 1997, in
addition to the Building standard cleaning services provided to the Office Space
and public portions of the Building, as described in this Section 6.01D (and
Exhibit D to the Lease), the General Cleaning and Special Services
(collectively, "Special Cleaning") described in the Special Services Cleaning
Specification attached hereto and made a part hereof as Exhibit A shall be
provided to Tenant, at Tenant's cost, as hereinafter set forth.
Tenant shall pay Landlord, as additional rent, a charge of
$13,709.37 per month (as hereinafter adjusted) for providing Special Cleaning.
Such Special Cleaning charge shall be adjusted on January 1, 1998, and on each
January 1 occurring thereafter during the term of this Lease (and during any
Renewal Term), by multiplying (i) the Special Cleaning charge payable by Tenant
hereunder as of the last month of the prior year (as adjusted hereby) by (ii)
103.75%.
In the event Landlord and Tenant shall agree on a change in the
scope of Special Cleaning services to be provided by Landlord hereunder, such
Special Cleaning charge shall also be adjusted to reflect such change, based on
the mutual written agreement of the parties, in accordance with then competitive
rates for such services.
Landlord and Tenant acknowledge and agree that the provisions of the
first paragraph of Section 6.01D (appearing on the first half of page 28 of the
Lease) shall be applicable, also, to Special Cleaning. Tenant, therefore, hereby
approves the current cleaning contractor for the Building (such cleaning
contractor being a division or affiliate of Landlord) for the purposes of
providing Special Cleaning, as well as the Building standard cleaning described
in Section 6.01D (subject, as aforesaid, to Tenant's rights with respect to
dissatisfaction with any cleaning services as set forth in said first paragraph
of Section 6.01D).
Landlord and Tenant acknowledge and agree that the provisions of
Section 4.01A.5.(xiv) (appearing on page 17 of the Lease) shall not be
applicable to Special Cleaning, so that one hundred percent (100%) of Special
Cleaning charges shall be excluded from Expenses.
3. At the request of either party hereto, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Agreement sufficient for recordation in the Register's Office. Such memorandum
shall not in any circumstances be deemed to change or otherwise affect any of
the obligations or provisions of the Lease or this Agreement.
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<PAGE> 3
4. Except as modified herein, all of the terms, covenants and
conditions of the Lease are and shall remain in full force and effect and are
hereby ratified and confirmed.
5. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
as of the day and year first above written.
46-47 ASSOCIATES L.L.C. (Landlord)
By: /s/ *
-------------------------------------
Name:
Title: VP
UNITED STATES TRUST COMPANY OF
NEW YORK (Tenant)
By: /s/ John M. Deignan
-------------------------------------
Name:
Title: Executive V.P.
-3-
<PAGE> 1
Exhibit 10.9
FOURTH LEASE MODIFICATION AGREEMENT
FOURTH LEASE MODIFICATION AGREEMENT (the "Agreement"), dated as of
August 31, 1998, between 46-47 ASSOCIATES L.L.C., a New York limited liability
company (formerly known as 46-47 Associates), with offices at 1155 Avenue of the
Americas, New York, New York 10036 (the "Landlord") and UNITED STATES TRUST
COMPANY OF NEW YORK, a New York banking corporation, having offices at 114 West
47th Street, New York, New York 10036 (the "Tenant").
W I T N E S S E T H:
WHEREAS, 46-47 Associates (predecessor to Landlord), as landlord,
and Tenant, as tenant, entered into that certain lease, dated as of September
10, 1987, a memorandum of which was recorded in Reel 1290, page 1448, in the
office of the City Register of the County of New York (the "Registers' Office")
and that certain lease modification agreement (the "Modification Agreement"),
dated as of December 7, 1987, which was recorded in Reel 1374, page 1722, in the
Register's Office and that certain lease modification agreement (the "Second
Lease Modification Agreement"), dated as of May 10, 1993, and that certain lease
modification agreement (the "Third Lease Modification Agreement"), dated as of
September 1, 1997, (collectively the "Lease") covering certain premises more
particularly defined in the Lease (the "Original Premises") in the building
designated and known as 114 West 47th Street (the "Building"), in the Borough of
Manhattan, City, County and State of New York; and
WHEREAS, Tenant desires to lease from Landlord and Landlord has
agreed to lease to Tenant those certain additional premises consisting of a
portion of the 26th floor of the Building known as Room 2600-15, consisting of
approximately 7,718 rentable square feet ("RSF") of space (the "Additional
Premises"), substantially as shown on the floor plan annexed hereto as Exhibit
A and made a part hereof.
NOW, THEREFORE, in consideration of the Additional Premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree that the Lease be and the
same hereby is amended as follows:
1. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
2. A. The term of this Agreement with respect to the Additional Premises
shall commence as of the date hereof (the "Additional Premises Commencement
Date") and shall end on June 30, 2005 (such date on which the term of this
Agreement expires is herein referred to as the "Additional Premises Expiration
Date") and as of the Additional Premises Commencement Date, the
<PAGE> 2
Additional Premises shall be added to and included in the Premises. The parties
acknowledge that the Additional Premises Expiration Date occurs prior to the
Expiration Date for the balance of the Premises under the Lease. All references
in the Lease and this Agreement to the Premises shall be deemed to include the
Additional Premises until the Additional Premises Expiration Date.
B. Tenant has inspected the Additional Premises. Landlord shall not
be required to perform any work with respect to the Additional Premises and
Tenant expressly agrees to take the Additional Premises on the Additional
Premises Commencement Date in its "as is" condition as of the date hereof,
provided the same is delivered vacant and broom clean.
3. A. The Fixed Rent payable for the Additional Premises only shall be
payable in accordance with the terms of the Lease and the following schedule:
(a) $347,311.00 per annum for the period beginning on the
Additional Premises Commencement Date and ending on July
31, 2001, payable in advance in equal monthly
installments of $28,942.58; and
(b) $372,724.00 per annum for the period beginning on August
1, 2001 and ending on the Additional Premises Expiration
Date, payable in advance in equal monthly installments
of $31,060.33.
B. Provided Tenant is not in continuing default hereunder after the
expiration of all applicable notice and cure periods, the Fixed Rent with
respect to the Additional Premises only shall be abated for the period beginning
on the Additional Premises Commencement Date and ending November 30, 1998 (the
"Additional Premises Abatement Period").
4. With respect to the Additional Premises only, Tenant shall pay as
additional rent (a) 1.4385% (the "Tenant's Proportionate Share of Increased
Taxes") of the amount of Taxes paid by Landlord in any Tax Year which exceed the
amount of Taxes paid by Landlord in the Tax Year commencing on July 1, 1998 and
ending June 30, 1999, without regard to any abatement, exemption and/or deferral
of Taxes resulting from the Industrial Commercial Development Incentive Program
("ICIP") and (b) 1.3728% (the "Tenant's Proportionate Share of Increased
Expenses") of the amount of Expenses paid by Landlord in any Expense Year which
exceed the amount of Expenses paid by Landlord in the Expense Year ending
December 31, 1998 (collectively, the "Additional Premises Escalation Payments").
The Additional Premises
-2-
<PAGE> 3
Escalation Payments shall be paid by Tenant as additional rent in accordance
with the provisions of Sections 4.01.B. and 4.01.C. of the Lease.
5. With respect to the Additional Premises, electricity shall be furnished
and payable in the manner provided for in Sections 7.02 and 7.03 of the Lease.
Landlord shall install, at Landlord's cost and expense, a separate meter or
meters serving only the Additional Premises. All payments required to be made by
Tenant for electricity shall be deemed to be additional rent.
6. Tenant shall be entitled to a work allowance for Tenant's permanent
initial alterations in the Additional Premises in the amount of $127,065.00 (the
"Additional Premises Work Allowance"). The foregoing Additional Premises Work
Allowance shall be disbursed in accordance with and subject to the terms of
Section N (d) of the Work Letter attached to the Lease as Exhibit C.
7. Tenant represents and warrants that it has not dealt with any broker or
brokers in connection with this transaction. Tenant agrees to defend, save and
hold Landlord harmless from any claims for fees and commissions and against any
liability (including reasonable attorneys' fees and disbursements) by reason of
Tenant's breach of such representation and warranty.
8. Tenant represents that it is not in default in the fulfillment or
performance of any of the terms, covenants or conditions on its part to be
fulfilled under the Lease or this Agreement, nor is it aware of any event which,
with notice or the passage of time or both would constitute such a default; and
it has no present defense, counterclaim or right or offset against Landlord.
9. Article 29 of the Lease is amended by adding "Richards & O'Neil, LLP,
885 Third Avenue, New York, New York 10022, Attention: Robert M. Safron, Esq."
as an additional address to which a copy of any notice to Landlord is to be
given, and Exhibit C, Paragraph N of the Lease is amended by deleting "White &
Case, 1155 Avenue of the Americas, New York, New York 10036, Attention Lenard H.
Mandel, Esq." as the address to which a copy of any notice to Landlord is to be
given, and replacing it with "Richards & O'Neil, LLP, 885 Third Avenue, New
York, New York 10022, Attention: Robert M. Safron, Esq.".
10. At the request of either party hereto, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Agreement sufficient for recordation. Such memorandum shall not in any
circumstances be deemed to change or otherwise affect any of the obligations or
provisions of the Lease or this Agreement.
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<PAGE> 4
11. Except as modified herein, all of the terms, covenants and conditions
of the Lease are and shall remain in full force and effect and are hereby
ratified and confirmed and this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective legal representatives,
successors and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fourth
Lease Modification Agreement as of the day and year first above written.
46-47 ASSOCIATES L.L.C.
By: /s/ *
-------------------------------------
Name:
Title:
UNITED STATES TRUST
COMPANY OF NEW YORK
By: /s/ John M. Deignan
-------------------------------------
Name: JOHN M. DEIGNAN
Title: EXECUTIVE V.P.
-4-
<PAGE> 5
EXHIBIT A
[GRAPHIC OMITTED]
<PAGE> 1
Exhibit 10.10
AGREEMENT OF LEASE
between
NEWPORT OFFICE CENTER III COMPANY, LLC
Landlord
and
U.S. TRUST COMPANY OF NEW JERSEY
Tenant
Entire 6th, 7th and 8th Floors
Newport Office Center III
499 Washington Boulevard
Jersey City, New Jersey
Sills Cummis Radin Tischman Epstein & Gross
One Riverfront Plaza
Newark, New Jersey 07102
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE 1
TERM; RENEWAL TERM; COMMENCEMENT
AND EXPIRATION DATE; END OF TERM.....................................-1-
ARTICLE 2
FIXED RENT; ADDITIONAL RENT; ADDITIONAL CHARGES......................-6-
ARTICLE 3
OCCUPANCY; PERMITTED USE; RESTRICTED USES...........................-18-
ARTICLE 4
ALTERATIONS.........................................................-20-
ARTICLE 5
MAINTENANCE AND REPAIRS.............................................-23-
ARTICLE 6
WINDOW CLEANING.....................................................-24-
ARTICLE 7
LEGAL REQUIREMENTS; FLOOR LOADS.....................................-24-
ARTICLE 8
SUBORDINATION; ATTORNMENT; MODIFICATIONS............................-27-
ARTICLE 9
INSURANCE; PROPERTY LOSS; DAMAGE; REIMBURSEMENT;
INDEMNITY; EXCULPATION AND NON-LIABILITY............................-29-
ARTICLE 10
DESTRUCTION, FIRE AND OTHER CASUALTY................................-33-
ARTICLE 11
EMINENT DOMAIN......................................................-35-
-ii-
<PAGE> 3
ARTICLE 12
ASSIGNMENT; SUBLETTING; MORTGAGE, ETC...............................-36-
ARTICLE 13
ELECTRICITY.........................................................-44-
ARTICLE 14
ACCESS TO PREMISES..................................................-46-
ARTICLE 15
PARKING.............................................................-46-
ARTICLE 16
DEFAULT.............................................................-49-
ARTICLE 17
REMEDIES AND DAMAGES................................................-52-
ARTICLE 18
INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION......................-54-
ARTICLE 19
BUILDING ALTERATIONS AND MANAGEMENT; CHANGES IN BUILDING
FACILITIES, SYSTEMS AND NAME; BUILDING DIRECTORY....................-54-
ARTICLE 20
NO REPRESENTATIONS BY LANDLORD......................................-56-
ARTICLE 21
QUIET ENJOYMENT.....................................................-56-
ARTICLE 22
WAIVERS.............................................................-56-
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<PAGE> 4
ARTICLE 23
WAIVER OF TRIAL BY JURY.............................................-57-
ARTICLE 24
SERVICES............................................................-57-
ARTICLE 25
INABILITY TO PERFORM; INDEPENDENT COVENANTS.........................-61-
ARTICLE 26
BILLS AND NOTICES...................................................-62-
ARTICLE 27
CONSTRUCTION OF LEASE...............................................-63-
ARTICLE 28
ADJACENT EXCAVATION; SHORING........................................-64-
ARTICLE 29
RULES AND REGULATIONS...............................................-64-
ARTICLE 30
SECURITY DEPOSIT....................................................-64-
ARTICLE 31
BROKER..............................................................-65-
ARTICLE 32
CONSENTS............................................................-66-
ARTICLE 33
ESTOPPEL CERTIFICATES...............................................-66-
ARTICLE 34
ARBITRATION........................................................-67-
-iv-
<PAGE> 5
ARTICLE 35
INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION......................-68-
ARTICLE 36
LANDLORD'S PERFORMANCE OF THE LANDLORD'S WORK; TENANT'S
PERFORMANCE OF THE TENANT'S INITIAL ALTERATIONS AND
LANDLORD'S PAYMENT OF LANDLORD'S CONTRIBUTION TOWARDS SUCH
TENANT WORK.........................................................-68-
ARTICLE 37
MISCELLANEOUS......................................................-73-
ARTICLE 38
TENANT'S NON-EXCLUSIVE RIGHT TO INSTALL AN ANTENNA
ON A PORTION OF THE BUILDING'S ROOF AND TO USE A PORTION
OF THE BUILDING OUTSIDE AREA FOR THE INSTALLATION OF A STANDBY
GENERATOR WITH ASSOCIATED EQUIPMENT FOR THE SUPPLY OF
UNINTERRUPTED POWER SUPPLY "UPS" TO THE PREMISES....................-75-
ARTICLE 39
TENANT'S OPTION TO EXPAND THE PREMISES..............................-75-
ARTICLE 40
GUARANTY OF LEASE...................................................-78-
E X H I B I T A
FLOOR PLAN OF THE PREMISES..........................................-81-
E X H I B I T A-1
NEWPORT SITE PLAN...................................................-82-
E X H I B I T A-2
LEGAL DESCRIPTION...................................................-83-
E X H I B I T A-3
LOCATION FOR UPS GENERATOR..........................................-84-
E X H I B I T B
FIXED RENT SCHEDULE.................................................-85-
E X H I B I T C
CLEANING SPECIFICATIONS AND SCHEDULE................................-86-
-v-
<PAGE> 6
E X H I B I T D
VENTILATED/COOLED AIR PERFORMANCE CRITERIA .........................-87-
E X H I B I T E
RULES AND REGULATIONS...............................................-88-
E X H I B I T F
FORM OF MEMORANDUM OF LEASE.........................................-90-
E X H I B I T G
TERMS AND CONDITIONS OF THE ANTENNA INSTALLATION....................-93-
E X H I B I T G - 1
TERMS AND CONDITIONS OF THE UPS GENERATOR INSTALLATION..............-99-
E X H I B I T H
LEFRAK GUARANTY OF LANDLORD'S CONTRIBUTION AND BROKERAGE
COMMISSION OWED TENANT'S BROKER....................................-102-
E X H I B I T I
GUARANTY OF LEASE BY
UNITED STATES TRUST COMPANY OF NEW YORK............................-106-
E X H I B I T J
OVERTIME COSTS FOR THE FIRST TWELVE MONTHS FOLLOWING THE
RENT COMMENCEMENT DATE.............................................-110-
E X H I B I T K
RENTABLE SQUARE FEET OF EACH FLOOR OF BUILDING.....................-111-
S C H E D U L E 1
LIST AND DESCRIPTION OF THE BUILDING PLANS.........................-112-
S C H E D U L E 2
DESCRIPTION OF THE BASE BUILDING WORK..............................-113-
S C H E D U L E 3
OPERATING COST CATEGORIES IN LANDLORD'S PRO FORMA BUDGET...........-114-
S C H E D U L E 4
LIST OF EXCLUDED NAMES.............................................-116-
-vi-
<PAGE> 7
INDEX TO DEFINITIONS
A/C System Section 24.3(A)
Additional Charges Section 2.2(A)
Additional Parking Area Section 15.10
Additional Parking Spaces Section 15.10
Additional Rent Section 2.1(B)
Affiliate Section 12.5(A)(6)
Alteration Section 4.1(A)
Alternate Parking Area Section 15.1(A)
Annual Service Charge Section 2.2(B)(1)
Antenna Section 38.1(A)
Antenna Installation Section 38.1(A)
ASP Section 13.5
Assessed Valuation Section 2.2(B)(4)
Assessments Section 2.2(B)(13)
Availability Date Section 39.1(A)(2)
Availability Notice Section 39.1(B)(2)
Bankruptcy Code Section 12.12(A)
Bankruptcy Event(s) Section 16.1(C)(7)
Base Building Work Section 36.1(B)
Base Taxes Section 2.2(B)(4)
Building Witnesseth Clause
Building Condenser Water System Section 24.3(C)
Building Changes Section 19.1(A)
Building Plans Section 36.1(A)
Building Plans Work Section 36.1(A)
Building Systems Section 2.2(B)(8)
Buildings Department Section 4.3
Business Days Section 24.1(A)
Business Hours Section 24.1.(A)
Certificate of Occupancy Section 3.1
Commencement Date Section 1.1(A)
Comparable Market Section 2.7(A)
Comparison Year Section 2.2(B)(7)
control, controlled by, under Section 12.9(D)
common control with
Declaration Section 2.2(B)(13)
Default Expenses Section 17.2(A)(3)
Deficiency Section 17.2(A)(3)
DEP Section 7.5(B)
Electrical Administration Fee Section 13.1(A)
Environmental Laws Section 7.5(A)
Event of Default Section 16.1
Excluded Names Section 19.2(A)(2)
Expiration Date Section 1.1(A)
Extra Costs Section 1.1(B)(7)
Fair Market Rent Section 2.7(A)
Final Tenant's Plans Section 36.9(A)
First Option Notice Section 39.1(B)
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<PAGE> 8
First Option Space Section 39.1(A)
Fixed Expiration Date Section 1.1(A)
Fixed Rent Section 2.1(A)
GAAP Section 2.2(B)(8)
Garage Access Cards Section 15.9
Generator Location Section 38.1(B)(1)
Guarantor Article 40
Guaranty of Lease Article 40
Heating System Section 24.2(A)
Indemnitees Section 9.1(B)
independent real estate appraiser Section 2.7(B)(4)
independent real estate broker Section 2.7(B)(4)
Initial Term Witnesseth Clause
Insurance Body/Bodies Section 7.1(A)
Interest Rate Section 2.1(H)
Landlord Preamble
Landlord Related Entity Section 12.5(A)(6)
Landlord's Appraiser Section 2.7(B)(3)
Landlord's Contribution Section 36.9(B)(1)
Landlord's Delays Section 1.1(B)(7)
Landlord's Determination Section 2.7(B)(1)
Landlord's Notice Section 2.7(B)(3)
Landlord's Option Section 12.4(B)
Landlord's Repair Notice Section 10.1(E)(1)
Landlord's Response Period Section 12.4(B)
Landlord's Work Section 36.1(C)
Lease Year(s) Section 39.1(A)
LeFrak Family Section 12.5(A)(6)
LeFrak Guaranty Section 1.1(E)
LeFrakl REIT Section 12.5(A)(6)
Legal Authority/Authorities Section 7.1(A)
Legal Requirements Section 7.1(A)
Lessor(s) Section 8.1
Maximum Number Section 15.10
Maximum Spaces Section 39.5
Mortgage Section 4.2
Mortgagee(s) Section 8.1
Mutual Determination Section 2.7(B)(3)
Net Worth Test Section 12.9(A)
Newport Remedial Plan Section 36.7
NEWPORT Site Plan Witnesseth Clause
NOC III Urban Renewal Section 2.2(B)(1)
Non-Structural Alterations Section 4.1(A)(2)
Operating Costs Section 2.2(B)(8)
Operating Payment Section 2.4(A)
Operating Statement Section 2.2(B)(10)
Option Section 39.1(A)
Option Space Section 39.1(A)
Option Space Exercise Section 39.1(B)
Parking Garage Section 15.1(A)
-viii-
<PAGE> 9
Parking Operator Section 15.1(C)
Parking Spaces Section 15.1(A)
Parties Section 9.9(A)
Partnership Tenant Section 37.5
Permits Section 4.4(A)
Permitted Use Section 3.1
Permitted Tenant Section 12.9(A)
Phase Section 36.1(C)
Phase 1 Base Building Work Schedule 2
Phase 2 Base Building Work Schedule 2
Plaza Sign Section 19.2(B)
Premises Witnesseth Clause
Prevailing Rate Section 12.5(A)(4)
Property Section 2.2(B)(1)
Ready to Commence Work Section 1.1(B)(7)
Recaptured Space Section 12.4(C)
Related Entity Section 12.9(B)(2)
Relevant Date Section 39.2(A)
Rent Section 2.1(B)
Rent Notice Section 2.7(B)(1)
Renewal Notice Section 1.3(A)
Renewal Term Section 1.3(A)
Renewal Term Commencement Date Section 1.3(A)
Restoration Period Section 10.1(E)(1)
Renewal Term Expiration Date Section 1.3(A)
Rent Commencement Date Section 2.1(A)
Restricted Uses Section 3.5
Rules and Regulations Section 29.1
Second Option Notice Section 39.1(B)(2)
Second Option Space Section 39.1(A)
Second Option Space Area Section 39.1(B)(2)
Second Option Space Availability Period Section 39.1(A)
Second Option Space Commencement Date Section 39.1(A)
Second Option Space Exercise Section 39.1(B)(2)
Second Option Space Shares Section 39.1(B)(2)
Security Deposit Section 30.1
Specialty Alterations Section 4.6
Structural Elements Section 4.1(A)(2)
Substantial Completion Date Section 36.5(A)
Substantial Completion of Work Notice Section 36.5(A)
substantially complete Section 36.8
Substitute Premises Section 35.1(A)
Successor Landlord Section 8.5
Superior Lease Section 4.2
Surrender Date Section 35.2
Tax Agreement Section 2.2(B)(1)
Tax Payment Section 2.3(A)
Tax Statement Section 2.2(B)(11)
Tax Year Section 2.2(B)(3)
Tenant Preamble
Tenant Delays Section 1.1(B)(7)
Tenant's Appraiser Section 2.7(B)(2)
Tenant's Assignment/Subletting Notice Section 12.4(A)
Tenant's Broker Article 31
Tenant's Construction Schedule Section 1.1(B)(2)
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<PAGE> 10
Tenant's Determination Section 2.7(B)(2)
Tenant's Initial Alterations Section 4.1(A)(1)
Tenant's Notice Section 2.7(B)(2)
Tenant's Operating Share Section 2.2(B)(5)
Tenant's Property Section 4.6(B)
Tenant's Repair Notice Section 36.5(B)
Tenant's Tax Share Section 2.2(B)(6)
Term Section 1.1(A)
Third Appraiser Section 2.7(B)(3)
Unavoidable Delays Section 25.1(A)
UPS Generator Section 38.1(B)(1)
-x-
<PAGE> 11
AGREEMENT OF LEASE, (the "Lease") made as of this 21st day of
December, 1998, by and between NEWPORT OFFICE CENTER III COMPANY, LLC., a New
Jersey limited liability company, having an address at 97-77 Queens Boulevard,
Rego Park, New York 11374 ("Landlord") and U.S. TRUST COMPANY OF NEW JERSEY, a
bank and trust company formed under the laws of the State of New Jersey, having
an address at 5 Vaughn Drive, Princeton, New Jersey 08543-5209 ("Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the entire sixth (6th), seventh (7th) and eighth (8th) floor(s) as
shown by hatching on Exhibit A annexed hereto and made a part hereof (the
"Premises") in the building to be constructed as hereinafter provided in the
NEWPORT development, on that certain plot or parcel of land (the "Land")
substantially in the location as shown on the NEWPORT site plan annexed hereto
as Exhibit A-1 and made a part hereof (the "NEWPORT Site Plan"), by the
designation "NEWPORT OFFICE CENTER III", to be located at 499 Washington
Boulevard and to be initially known as Newport Office Center III, (the
"Building") in the City of Jersey City, County of Hudson, and State of New
Jersey as more particularly described on Exhibit A-2 annexed hereto and made a
part hereof, subject to all liens, encumbrances, easements, restrictions,
covenants, zoning laws and regulations affecting and governing the Premises, for
(x) the initial term of fifteen (15) years and nine (9) months (the "Initial
Term"), to commence on the "Commencement Date" (as defined in Section 1.1 of
this Lease), and to end on the "Fixed Expiration Date" (as defined in Section
1.1), both dates inclusive, and (y) for any "Renewal Term" (as defined in
subsection 1.3(A)(3)), if properly exercised by Tenant in accordance with the
terms and provisions of this Lease (collectively, the "Term"), at the "Rent" (as
defined in Article 2).
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and permitted
assigns, hereby covenant as follows:
ARTICLE 1
TERM; RENEWAL TERM; COMMENCEMENT
AND EXPIRATION DATE; END OF TERM
Section 1.1 (A) The Term shall (1) commence on the later of (a) October 1,
1999, or (b) the date on which Landlord and/or Landlord's contractors shall have
"substantially completed" (as defined in Section 36.8) the performance of the
"Phase I Base Building Work" described on Schedule B; such date being called the
"Commencement Date") and (2) end at noon (a) on the last day of the ninth (9th)
calendar month following the fifteenth (15th) anniversary of the "Commencement
Date" (as defined in Section 2.1); the "Fixed Expiration Date"), or (b) on such
earlier date upon which the Initial Term may expire or be canceled or terminated
pursuant to any of the terms, conditions or covenants of this Lease or pursuant
to law, or (c) on the expiration date or earlier termination of any Renewal Term
properly exercised by Tenant hereunder (the Fixed Expiration Date or any earlier
termination date of this Lease as aforesaid, or the expiration or earlier
termination of any properly exercised Renewal Term, is called the "Expiration
Date").
(B) (1) The aforementioned Phase I Base Building Work shall be
substantially completed, as aforesaid, on or before October 1, 1999. If Tenant
is "Ready to Commence Work" (as such term is hereinafter defined) on October 1,
1999, and Landlord and/or its contractor(s) fail to substantially complete the
Phase 1 Base Building Work by October 1, 1999 (except if due to Tenant Delays),
Tenant shall have the right, at its option, to terminate this Lease by notice to
Landlord given on or before fifteen (15 ) "Business Days" (as defined in Section
24.1(A)) after October 1, 1999, whereupon this Lease shall terminate, be deemed
null and void and of no further force and effect as of the eleventh (11th) day
following the date of such
-1-
<PAGE> 12
termination notice (subject to Landlord's right to postpone such termination as
provided in paragraph (B)(2) below), as if such date were the Expiration Date of
this Lease. If Tenant fails to send such termination notice to Landlord on or
before the fifteenth (15th) Business Day after October 1, 1999, TIME BEING OF
THE ESSENCE, this Lease shall continue in full force and effect binding upon the
parties hereto.
(2) Notwithstanding the foregoing, if Tenant sends such
termination notice to Landlord on or before the fifteenth (15th) Business Day
after October 1, 1999, Landlord shall have the right, at its option, to postpone
the effective date of such termination until sixty (60) days from the date of
such termination notice given by Tenant (such sixty-day period being hereinafter
referred to as the "Additional Phase 1 Period") , in order to provide Landlord
and/or Landlord's contractors with an additional period of time within which
Landlord may attempt to substantially complete the Phase 1 Base Building Work,
by notice to Tenant given within ten (10) days following the date of such
termination notice given by Tenant. In the event Landlord shall elect to
postpone Tenant's termination of the Lease, Landlord shall reimburse Tenant for
the amount of any "Extra Costs" (as defined below) incurred by Tenant in the
event Tenant was Ready to Commence Work on October 1, 1999 and Landlord's
failure to substantially complete the Phase 1 Base Building Work by October 1,
1999 causes Tenant to be delayed in actually commencing and performing "Tenant's
Initial Alterations" (as defined in Section 4.1(A)) in accordance with Tenant's
construction schedule for the performance of the Tenant's Initial Alterations
(the "Tenant's Construction Schedule"), a copy of which Tenant shall provide to
Landlord no later than September 15, 1999, and not as a result of any "Tenant
Delays" (as defined below).
(3) If, on or before the expiration of the Additional Phase 1
Period, the Phase 1 Base Building Work is substantially completed, then, in
accordance with Section 1.1(A) above, the date on which substantial completion
of the Phase 1 Base Building Work occurs shall be the Commencement Date hereof.
If the Phase 1 Base Building Work has not been substantially completed on or
before the expiration of the Additional Phase 1 Period (as same may be extended
by Tenant Delays) then Tenant shall have the right, at its option, to terminate
this Lease by notice to Landlord given on or before fifteen (15) Business Days
thereafter, whereupon this Lease shall terminate, be deemed null and void and of
no further force and effect as of the date of such termination notice.
(4) Tenant hereby agrees that it shall, in good faith, use all
commercially reasonable efforts to minimize the use of extra labor and to
minimize other Extra Costs. In addition, Tenant shall advise Landlord in
writing, as soon as reasonably practicable, that Tenant will incur Extra Costs,
which notice shall include a description of the then deviation or delays from
the Tenant's Construction Schedule caused by Landlord's failure to timely
perform ( to the extent the same may then be determined), as provided above, and
Tenant's good faith estimate of the overtime and other Extra Costs required in
order to cause Tenant's Initial Alterations to be performed in accordance with
the Tenant's Construction Schedule, to the extent the Extra Costs may then be
determined. Tenant shall also advise Landlord during the progress of the
performance of Tenant's Initial Alterations, of any "Tenant's Delays"(as
hereinafter defined).
(5) Promptly following completion of Tenant's Initial
Alterations, Tenant shall forward to Landlord a statement of the Extra Costs
which statement shall set forth in reasonable detail the amount and calculations
thereof. Provided Landlord does not dispute Tenant's amount and calculation of
the Extra Costs, as hereinbelow provided, Landlord shall pay the Extra Costs
amount to Tenant within fifteen (15) Business Days after receipt of the
statement of Extra Costs by Tenant. In the event the Extra Costs are not paid
within such 15-Business Day period, the amount due shall bear interest from the
date such payment is due to the date of actual payment at the Interest Rate (as
defined in Section 2.1(H)).
(6) In the event that Landlord disputes Tenant's amount and
calculation of the Extra Costs, then either party may resort to arbitration as
provided in Article 34 by notice given to the other party within fifteen (15)
Business Days after either (i) in the case of Landlord, Tenant's statement of
Extra Costs shall have been forwarded to Landlord or (ii) in the case of
-2-
<PAGE> 13
Tenant, Landlord shall notify Tenant that it disputes the amount of the Extra
Costs. The time by which Landlord must pay the Extra Costs as set forth above,
shall toll pending the resolution of such dispute by arbitration as hereinafter
provided. In the event of an arbitration, Tenant agrees that Landlord and/or its
representatives, agents and employees shall have the right of reasonable access
(for a reasonable period not to exceed thirty (30) days after Landlord's notice
of dispute shall have been given) to review Tenant's books and records
applicable to Tenant's Initial Alterations costs, including all labor costs, for
the purpose of verifying Tenant's calculation and amount of the Extra Costs.
Landlord on behalf of itself and such permittees, agrees to keep any and all
information obtained thereby strictly confidential (except to the extent
relevant to any arbitration proceeding as aforesaid). Any amount of Extra Costs
not in dispute shall be paid within the fifteen (15) Business Day period as
provided above. At such time as a decision is rendered in the arbitration
proceeding, Landlord shall pay the amount determined within fifteen (15)
Business Days thereafter. In the event such Extra Costs are not paid within such
15-Business Day period, the amount due shall bear interest at the Interest Rate
from the date such payment is due to the date of actual payment.
(7) For purposes of this Section 1.1(B), the following terms
shall have the meanings ascribed to them below:
(a) "Ready to Commence Work" shall mean that Tenant has
(I) prepared its plans and specifications for Tenant's Initial Alterations and
has obtained or been deemed to have obtained Landlord's consent thereto as
provided in Article IV of this Lease, (II) obtained the required permits and
approvals for the commencement of the performance of Tenant's Initial
Alterations required by the applicable Legal Authorities (copies of which
approvals and permits Tenant shall have furnished to Landlord promptly after
Tenant's receipt thereof), (III) selected a contractor(s) for the performance of
Tenant's Initial Alterations and has entered into an agreement with such
contractor(s) for the performance thereof (a copy of which agreement Tenant
shall furnish to Landlord), (IV) received delivery at the Premises of those
materials, supplies, machinery, and materials required for the commencement of
the performance of Tenant's Initial Alterations (if such materials can be stored
at the Premises), and (V) forwarded to Landlord a copy of a written notice from
its contractor(s) that they were able to commence the performance of Tenant's
Initial Alterations as of October 1, 1999 but for "Landlord's Delays" (as
hereinafter defined).
(b) "Extra Costs" shall mean (X) in the event that
Tenant has terminated the Lease as provided in Section 1.1(B)(3) above, the
following costs incurred by Tenant in preparation of the commencement of
Tenant's Initial Alterations: (i) storage charges for materials after October 1,
1999, (ii) reimbursement of long lead items no longer usable by Tenant, (iii)
charges by Tenant's contractors, subcontractors, or suppliers for restocking
materials or other items, and (iv) cancellation fees under any contract for
construction work or materials; and (Y) in the case where the Lease is not
terminated either under in subsection 1.l(B)(2) or subsection 1.1(B)(3) above,
the costs incurred by Tenant in completing Tenant's Initial Alterations by April
1, 2000, that would not have been incurred but for Landlord's failure to
complete the Phase 1 Base Building Work by October 1, 1999, including, without
limitation, (i) storage charges of materials for Tenant's Initial Alterations
after October 1, 1999, (ii) premiums for early delivery of materials, (iii) the
use of extra labor and the cost of any premium time labor, (iv) charges by
Tenant's contractors, subcontractors or suppliers for restock in materials or
other items, and (v) cancellation fees under any contract for construction work
or materials.
(c) "Landlord's Delays" shall mean any delays caused by
or resulting from the actions, inactions or other conduct, whether negligent or
intentional, of Landlord and/or its contractors in failing to complete the Phase
I Base Building Work by October 1, 1999, excluding Tenant Delays.
(d) "Tenant Delays" shall mean any circumstance or event
caused by or resulting from the actions, inactions or other conduct, whether
negligent or intentional, of Tenant and/or its contractors, and not arising from
Landlord's failure to complete the Phase I Base Building Work by October 1, 1999
or by Landlord's Delays.
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(8) Except as expressly set forth in this Section 1.1, Tenant
hereby agrees that Tenant shall have no right to terminate this Lease, or to
claim any fees, sums or other payments from Landlord, or to institute any action
of claim against Owner for damages, as a result of Landlord's failure to meet
any of the preceding terms and conditions of this Section 1.1.
(C) If the Commencement Date has not occurred within two (2) years
from the date this Lease has been executed and delivered by the parties hereto,
this Lease shall automatically terminate without further action by Landlord or
Tenant, whereupon the parties hereto shall be freed from and relieved of all
further obligations arising under this Lease.
(D) After the determination of the Commencement Date, Landlord and
Tenant, upon demand of either party, shall enter into a written agreement
setting forth the Commencement Date and the Fixed Expiration Date, but the
failure to execute such an agreement shall not affect the validity of the
Commencement Date or the Fixed Expiration Date as finally determined.
(E) Concurrently with the execution and delivery of this Lease,
Messrs. Samuel J. LeFrak and Richard S. LeFrak, principals of Landlord, shall
provide Tenant with a guaranty in form and substance identical to the guaranty
annexed hereto as Exhibit H and made a part hereof (the "LeFrak Guaranty"), of
Landlord's obligations under this Lease to (1) pay a brokerage commission to
"Tenant's Broker" (as such terms are defined in Section 31.1), and (2) disburse
to Tenant the amount of any "Landlord's Contribution" (as defined in Section
36.9).
Section 1.2 (A) On or before 5:00 p.m. on the Expiration Date, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, ordinary wear and fire and casualty damage not required to be
repaired by Tenant excepted, and Tenant shall remove all "Tenant's Property" (as
defined in Section 4.6 (B)) and specifically comply with the requirements of
Sections 4.6, 7.1 and 7.5 hereof. Tenant's obligation to observe or perform this
covenant shall survive the Expiration Date. In addition, Landlord shall have the
right, at its option, to treat any failure by Tenant to comply with this
covenant as a form of holding over and in that event, Landlord shall be entitled
to all of its rights and remedies hereunder with respect to a holdover by
Tenant.
(B) Tenant acknowledges that possession of the Premises must be
surrendered to Landlord on the Expiration Date in the condition required
hereunder. Tenant further acknowledges, recognizes and agrees that the damage to
Landlord resulting from any failure by Tenant to timely surrender possession of
the Premises on the Expiration Date, as aforesaid, will be substantial, will
exceed the amount of the monthly installments of the Rent theretofore payable
hereunder, and will be impossible to accurately measure. Landlord nevertheless
agrees to afford Tenant a sixty (60) day grace period before certain rights and
remedies of Landlord can be invoked by Landlord, as specified hereinbelow.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord within sixty (60) days after the Expiration Date in full compliance
with the terms of this Lease, then in addition to any and all other rights or
remedies Landlord may have hereunder, in equity or at law, Tenant shall pay to
Landlord for each month and for each portion of any month during which Tenant
holds over in the Premises after the Expiration Date, a sum equal to one and
one-half (1-1/2) times the aggregate of that portion of the Fixed Rent and
Additional Rent which was payable under this Lease during the last month of the
Term (during the first sixty (60) days following the Expiration Date, Tenant
shall pay 100% of the aggregate Rent). The parties agree that such amount is a
reasonable forecast of just compensation for the damage to Landlord that will
result from such failure to timely surrender possession of the Premises
(particularly in light of the 60-day grace period described herein) and the
parties further agree that the damage to Landlord that will result from such
failure is one that is incapable or very difficult to estimate, and that the
aforesaid amount is specifically acknowledged and agreed to be fair and
reasonable, and not a penalty.
(C) Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date, and no acceptance
by Landlord of payments from Tenant after the Expiration Date shall be deemed to
be other than on account of the amount to be paid by Tenant in accordance with
the provisions of this Section 1.2. The acceptance of any
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Rent paid by Tenant pursuant to this Section 1.2 shall not preclude Landlord
from commencing and prosecuting a holdover or summary eviction proceeding. It is
further stipulated and agreed that if Landlord shall, at any time after the
Expiration Date, proceed to remove Tenant from the Premises as a holdover, the
Rent for the use and occupancy of the Premises during any holdover period shall
be calculated in the manner as set forth above.
(D) Tenant expressly waives, for itself and for any person claiming
by, through or under Tenant, any rights which Tenant or any such person may have
under the provisions of any law, ordinance or regulation of any "Legal
Authority" (as defined in Section 7.1) then in force permitting or mandating the
issuance of a "stay" in connection with any holdover summary proceedings which
Landlord may institute to enforce the foregoing provisions of this Section 1.2.
If Tenant shall holdover or remain in possession of any portion of the Premises
beyond the Expiration Date, Tenant shall be subject not only to summary
proceedings and all documented damages related thereto, but also, if Tenant
shall holdover or remain in possession of any portion of the Premises for more
than sixty (60) days from and after the Expiration Date, to any documented
losses and damages arising out of any actual lost opportunities (as a result of
new leases), including, but not limited to, claims by, or damages to, any
succeeding tenant.
(E) All damages to Landlord by reason of such holding over by Tenant
may be the subject of a separate action and need not be asserted by Landlord in
any summary proceedings against Tenant. Tenant's obligations under this Section
1.2 shall survive the Expiration Date.
Section 1.3 (A) (1) Tenant shall have the option (the "First Renewal
Option") to extend the Initial Term for an additional five (5) year period (the
"First Renewal Term"), which First Renewal Term shall commence on the date
immediately succeeding the Fixed Expiration Date (the "First Renewal Term
Commencement Date") and end on the fifth (5th) anniversary of the Fixed
Expiration Date (the "First Renewal Term Expiration Date"), provided, however,
that: (a) this Lease shall not have been previously terminated; and (b) that no
"Event of Default" (as defined in Section 16.1) shall then have occurred and be
continuing (i) on the date Tenant gives Landlord written notice (the "First
Renewal Notice") of Tenant's election to exercise the First Renewal Option or
(ii) on the First Renewal Term Commencement Date. The First Renewal Option may
be exercised by Tenant with respect to the entire Premises only, no earlier than
eighteen (18) months nor later than twelve (12) months prior to the Fixed
Expiration Date, TIME BEING OF THE ESSENCE with respect to the giving of the
First Renewal Notice.
(2) Tenant shall have a further and final option (the "Second
Renewal Option") to extend the Term for an additional and final five (5) year
period (the "Second Renewal Term"), which Second Renewal Term shall commence on
the date immediately succeeding the First Renewal Term Expiration Date (the
"Second Renewal Term Commencement Date") and end on the fifth (5th) anniversary
of the First Renewal Term Expiration Date (the "Second Renewal Term Expiration
Date"), provided, however, that: (a) Tenant shall have exercised the First
Renewal Option for the First Renewal Term; (b) this Lease shall not have been
previously terminated; and (c) that no Event of Default shall then have occurred
and be continuing (i) on the date Tenant gives Landlord written notice (the
"Second Renewal Notice") of Tenant's election to exercise the Second Renewal
Option or (ii) on the Second Renewal Term Commencement Date. The Second Renewal
Option may be exercised by Tenant with respect to the entire Premises only, no
earlier than eighteen (18) months nor later than twelve (12) months prior to the
First Renewal Term Expiration Date, TIME BEING OF THE ESSENCE with respect to
the giving of the Second Renewal Notice. Tenant shall have no further right or
option to extend the then Term of this Lease.
(3) For purposes of this Section 1.3 and this Lease: (a) the First
Renewal Option and the Second Renewal Option are each individually called a
"Renewal Option" and are collectively called the "Renewal Options"; (b) the
First Renewal Term and the Second Renewal Term are each individually called a
"Renewal Term" and are collectively called the "Renewal Terms"; (c) the First
Renewal Term Commencement Date and the Second Renewal Term Commencement Date are
each individually called a "Renewal Term Commencement Date" and are collectively
called the "Renewal Term Commencement Dates"; and (d) the First Renewal
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Term Expiration Date and the Second Renewal Term Expiration Date are each
individually called a "Renewal Term Expiration Date" and are collectively called
the "Renewal Term Expiration Dates."
(B) In the event that Tenant timely and validly exercises a Renewal
Option for a Renewal Term as hereinafter provided, the Term shall automatically
be deemed to be extended to, and include the particular Renewal Term so
exercised, and the particular Renewal Term Expiration Date shall be deemed to be
the Fixed Expiration Date of this Lease for all purposes hereof.
(C) Tenant covenants and agrees that with respect to its exercise of
a Renewal Option as set forth in this Section 1.3, Tenant will not exercise such
Renewal Option unless Tenant occupies at least two-thirds (2/3rds)of the then
Premises (as the same shall be constituted immediately prior to the particular
Renewal Term Commencement Date).
(D) Notwithstanding anything to the contrary contained in this
Lease, the term "Tenant" when used in this Section 1.3 shall be deemed to refer
to and mean only the Tenant named in this Lease, U.S. TRUST COMPANY OF NEW
JERSEY, or UNITED STATES TRUST COMPANY OF NEW YORK or a "Permitted Tenant"
thereto (as defined in Section 12.9(A), and shall not be deemed to include any
other assignee or other successor-in-interest (immediate or remote) of the
Permitted Tenant; it being agreed and understood that the Renewal Options and
the other rights set forth in this Section 1.3 have been granted only to a
Permitted Tenant for its sole and exclusive benefit, for so long as such entity
is the holder of Tenant's estate and interest granted by this Lease, and that
neither the Renewal Options nor any other rights set forth in this Section 1.3
may be transferred or conveyed to any other person or entity.
(E) If Tenant exercises a Renewal Option, the Renewal Term for such
Renewal Option in question shall be upon the same terms, covenants and
conditions as those contained in this Lease, except that: (a) the Fixed Rent
shall be deemed to mean the Fixed Rent as determined pursuant to Section 2.7
below; (b) Tenant shall not be entitled to any work allowance or credit or any
waiver of Fixed Rent, Additional Rent or any other rent abatement or concession
during the Renewal Term in question; and (c) Tenant shall have no further right
to renew the Term of this Lease beyond the Second Renewal Term.
ARTICLE 2
FIXED RENT; ADDITIONAL RENT; ADDITIONAL CHARGES
Section 2.1 (A) Tenant shall pay rent for the Premises provided in this
Lease, at the annual fixed rental amounts (the "Fixed Rent") as set forth on
Exhibit B annexed hereto and made a part hereof. Subject to any postponement to
which Tenant may be entitled under Section 36.2 of this Lease, Tenant shall pay
Fixed Rent in equal monthly installments in advance on the first day of each
month during the Term commencing on the one hundred and eighty-first (181st) day
after the Commencement Date (the "Rent Commencement Date"), at the office of
Landlord or such other place as Landlord may designate, without any set-off,
offset, abatement or deduction whatsoever. Tenant shall pay the first monthly
installment(s) of Fixed Rent on or before the Rent Commencement Date. If the
Rent Commencement Date occurs on a day other than the first day of a calendar
month, the Fixed Rent for such calendar month shall be pro rated based upon the
number of days in the month. Tenant shall also pay other sums under this Lease,
in addition to Fixed Rent, in the manner as hereinafter provided.
(B) All sums and charges other than Fixed Rent due and payable by
Tenant to Landlord under this Lease including, without limitation, "Additional
Charges" (as defined in Section 2.2), electrical costs under Article 13 and late
charges assessed pursuant to this Lease are called "additional rent" or
"Additional Rent". Fixed Rent and Additional Rent are collectively called "rent"
or "Rent". The failure of Tenant to make any payment of Additional Rent in this
Lease shall entitle Landlord to all rights and remedies provided hereunder for
the non-payment of Fixed Rent.
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(C) All payments of Fixed Rent shall be made to Landlord on the
first day of each month during the Term commencing on the Rent Commencement Date
without notice or demand. All payments of recurring items of Additional Rent,
(i.e., regular monthly Additional Charges and payments for electricity pursuant
to Section 13.1(A)), shall be made to Landlord within ten (10) days after
delivery of a notice or demand therefor. Payment of all other items of
Additional Rent shall be made to Landlord within thirty (30) days after delivery
of a notice or demand therefor. All Rent payments shall be made in lawful money
of the United States of America, which shall be legal tender in payment of any
debts and dues public and private, at the time of payment by good and sufficient
check subject to collection and drawn on either The United States Trust Company
of New York (as long as Tenant is the Tenant named herein or a Related Entity)
or on a New York City bank or trust company which is a member of the New York
Clearinghouse Association.
(D) In the event any check issued by Tenant is dishonored for any
reason, Tenant shall submit a replacement check within three (3) Business Days
following notice from Landlord that the first check was dishonored. If Tenant
fails to submit a replacement check within the period of time set forth above,
such failure shall be deemed an Event of Default hereunder. Any notice from
Landlord pursuant to this paragraph shall count towards the number of rent
notices Tenant shall be entitled to receive from Landlord in any twelve (12)
month period, as more fully provided in Section 16.1(A) hereof.
(E) In the event that, at the commencement of the Term, or
thereafter, Tenant shall be in default in the payment of Rent to Landlord
pursuant to the terms of another lease with Landlord or Landlord's predecessor
in interest, Landlord may at Landlord's option and without notice to Tenant add
the amount of such arrears to any monthly installment of Fixed Rent payable
hereunder and the same shall be payable to Landlord as additional rent.
(F) No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct amount of Fixed Rent or Additional Rent shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided. Tenant's obligation to pay Fixed Rent,
Additional Rent and any other charges accruing hereunder shall survive the
Expiration Date, to the extent necessary to carry out the provisions of this
Lease with respect to Tenant's obligations accrued prior to the Expiration Date
(but such obligation on the part of Tenant shall in all events expire on the
first anniversary of the Expiration Date). The payment by Tenant of Fixed Rent
or Additional Rent with knowledge of any breach by Landlord of any covenant of
this Lease shall not be deemed a waiver of such breach, and payment of same by
Tenant shall be without prejudice to Tenant's right to pursue any remedy against
Landlord in this Lease provided.
(G) If at the commencement of, or at any time or times during the
Term, the Fixed Rent, additional rent or any other charge reserved in this Lease
shall not be fully collectible by reason of any "Legal Requirement" (as defined
in Section 7.1), Tenant shall enter into such agreements and take such other
steps (without additional expense to Tenant) as Landlord may request and as may
be legally permissible to permit Landlord to collect the maximum rents which may
from time to time during the continuance of such Legal Requirement be legally
permissible (and not in excess of the Rent reserved under this Lease). Upon the
termination of such Legal Requirement, (1) the Fixed Rent, additional rent and
all other charges shall become and thereafter be payable hereunder in accordance
with the amounts reserved in this Lease for the periods following such
termination, if such termination is prior to the Fixed Expiration Date, and (2)
Tenant shall pay to Landlord, if legally permissible, an amount equal to (a) the
Fixed Rent, additional rent and any other charges which would have been paid
pursuant to this Lease but for such Legal Requirement, less (b) the rents paid
by Tenant to Landlord during the period or periods such Legal Requirement was in
effect.
(H) Any payment of Fixed Rent not paid within ten (10) days after
the due date
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therefor and any payment of Additional Rent due from Tenant to Landlord not paid
upon the date herein specified to be paid, shall bear interest from the date
such payment is due to the date of actual payment at the rate of the daily Prime
Rate published by the Wall Street Journal plus three percent (3%) per annum or
the highest lawful rate of interest permitted by the laws of the State of New
Jersey, whichever rate of interest is lower (the "Interest Rate").
Notwithstanding the interest charge, non-payment of any Rent shall constitute a
default of this Lease.
Section 2.2 (A) Tenant shall also pay to Landlord, during the Term, as
additional rent, "Tax Payments" and "Operating Payments" (collectively, the
"Additional Charges") as defined and provided in Section 2.3 and Section 2.4
hereof.
(B) For purposes of Section 2.3 and 2.4, the following terms
shall have the meanings set forth below:
(1) "Taxes" shall mean the aggregate amount of real estate
taxes and any general or special assessments (exclusive of penalties and
interest thereon) imposed upon the Building and other improvements located
upon the Land (the Building and Land are collectively referred to as the
"Property") including without limitation, (i) any City, Town, County,
Village, School or other local tax, (ii) all amounts payable under the
provisions of the Financial Agreement dated May 22, 1998 by and between
NOC III Urban Renewal Limited Liability Company ("NOC III Urban Renewal"),
a "Landlord Related Entity" (as defined in Section 12.5(A)(6)) and the
City of Jersey City, as the same may have been or may hereafter be
amended, entered into pursuant to the Long Term Tax Exemption Law, as
amended and supplemented (N.J.S.A. 40A:20-1 et seq.), Executive Order
S-039 relating to long term tax exemption and Ordinance 98-038, adopted
April 22, 1998 (the "Tax Agreement"), and (iii) any taxes or assessments
levied after the date of this Lease in whole or in part for public
benefits to the Property; without taking into account any discount that
Landlord may receive by virtue of any early payment of Taxes or otherwise;
provided, however, that if because of any change in the taxation of real
estate, any other tax or assessment, however denominated (including,
without limitation, any franchise, income, profit, sales, use, occupancy,
gross receipts or rental tax), is imposed upon Landlord with respect to
the Property, or the occupancy, rents or income therefrom, whether in
substitution for or in addition to any of the foregoing Taxes, such other
tax or assessment shall be deemed part of Taxes computed as if Landlord's
sole asset were the Property. With respect to any "Tax Year" (as defined
below), all expenses, including, without limitation, attorneys' fees,
court costs and disbursements and experts' and other witnesses' fees
incurred in contesting the validity or amount of any Taxes or the
"Assessed Valuation" (as defined below) or in obtaining a refund of Taxes,
shall be considered as part of Taxes for such Tax Year (subject to Section
2.3(C)). Anything contained herein to the contrary notwithstanding, Taxes
shall not be deemed to include (u) any taxes on Landlord's income, (v)
franchise taxes, (w) estate or inheritance taxes, (x) Landlord's
contribution to a special recreation fund referred to in item 7 of Exhibit
3 of the Tax Agreement ("Recreational Costs"); (y) "Land Taxes" payable
under the terms of the Tax Agreement to the extent they are credited
against the "Annual Service Charge" (as such terms are defined in the Tax
Agreement), or (z) any similar taxes, imposed on Landlord, unless such
taxes are levied, assessed or imposed in lieu of or as a substitute for
the whole or any part of the taxes, assessments, levies or impositions
which now constitute Taxes. Further, notwithstanding anything to the
contrary contained herein, Landlord hereby agrees that, in the event that
as a result of any act or omission of Landlord and/or NOC III Urban
Renewal, the Tax Agreement is amended, modified, terminated or is not put
into complete effect, then, from and after the first day of the month
following the issuance of a Certificate of Occupancy for the Building and
until the end of the period described in Article III of the Tax Agreement,
Taxes shall be computed as if (x) the Building were exempt from taxation,
and (y) the Annual Service Charge were in effect, computed in accordance
with the Tax Agreement. Further, if the City of New Jersey wilfully
defaults under or breaches the terms of the Tax Agreement, Landlord agrees
to use commercially reasonable efforts to enforce its rights thereunder.
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(2) "Assessed Valuation" shall mean the amount for which the
Property is assessed for the purposes of the imposition of Taxes, pursuant
to applicable law, statute, ordinance or other legislation of any other
legal authority.
(3) "Tax Year" shall mean the twelve (12) month period of
January 1 through December 31 (or such other period as may hereafter be
duly adopted by the City of Jersey City or such other legal authority as
its fiscal year for real estate tax purposes), any portion of which occurs
during the Term.
(4) INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION.
(5) "Tenant's Operating Share" shall mean twenty-three and
four one-hundredths (23.04%) percent.
(6) "Tenant's Tax Share" shall mean twenty-two and twenty-nine
one-hundredths (22.29%) percent.
(7) "Comparison Year" shall mean with respect to "Operating
Costs" (as defined in (8) below), any calendar year subsequent to the
calendar year 2000 for any part or all of which there are Additional
Charges pursuant to Section 2.3 and Section 2.4 below.
(8) (a) "Operating Costs" shall mean all costs and expenses
(and taxes, if any, thereon, including without limitation, sales and value
added taxes) incurred or payable by Landlord in connection with the
operation, maintenance, repair, replacement and management of the Property
(including the equipment located therein) whether structural or
non-structural, and whether capital or non-capital in nature, including,
without limitation, security costs and alarm services, all operating costs
pertaining to the "Heating System" and the "A/C System" (as defined in
Article 24), the Building-wide mechanical, electrical, sanitary, plumbing,
heating, air-conditioning, ventilating, utility or any other Building-wide
service systems and all equipment thereof (collectively, the "Building
Systems"), management fees in an amount not to exceed those typically
charged in the "Comparable Market" (as hereinafter defined), electricity
furnished to all common areas of the Property, whether inside or outside,
and required to operate the Heating System and all other Building Systems
(excluding, however, electricity paid for by Tenant and other tenants in
the Building as measured by Tenant's and such other tenants' check meters
including the electricity for the A/C system in the Premises and other
premises in the Building), water, water rates, frontage charges, sewer
rents, insurance, fuel, labor, wages and salary, employee benefits and
payroll taxes, maintenance and service contracts, window and other
cleaning, rubbish and refuse removal (but the net amount of any revenues
or proceeds Landlord receives from the Building's recyclable goods and
materials shall be credited back against the Operating Costs), supplies,
the amount of any "Assessments" payable by Landlord with respect to the
Property to Newport Property Owners Association, Inc. (or any successor
thereto) pursuant to the "Declaration" (as such terms defined in clauses
(11) and (12) below), irrespective of whether any costs included in
Assessments are excluded from the definition of Operating Costs hereunder,
costs of alterations and improvements made by reason of the requirements
of "Insurance Bodies" (as defined in Section 7.1), and/or Legal
Requirements, the amount of the "Electrical Administration Fee" (as
defined in Section 13.1(A) hereof), and maintenance and repair of the
outside grounds of the Property (including without limitation gardening
and landscaping thereof).
(b) Notwithstanding the foregoing, Operating Costs shall
not include:
(i) salaries of personnel above the grade of
Building manager;
(ii) Taxes;
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(iii) interest and penalties for late payment of
Taxes or water and sewer rents;
(iv) any expenses for which the Landlord is
compensated through proceeds of insurance;
(v) the cost of any tenant changes or alterations
(including Landlord's Contribution) made by or on
behalf of other tenants of the Building;
(vi) the cost of repair or rebuilding caused by
fire or other casualty or condemnation (except for
the amount of commercially reasonable deductibles);
(vii) advertising and promotional expenditures;
(viii) legal and auditing fees other than
reasonable arbitration, legal, consulting and
auditing fees necessarily incurred in connection
with the maintenance, operation or management of
the Property and/or the Building (but in no event
shall Operating Costs include such fees if same are
incurred in connection with leasing space in the
Building or resolving disputes with individual
tenants of the Building);
(ix) expenses of relocating or moving tenants and
of leasing to and processing new tenants, including
lease concessions;
(x) expenses resulting from any violations by the
Landlord of the terms of any lease in the Building;
(xi) franchise, gross receipt and income taxes
imposed upon Landlord;
(xii) rent paid under Superior Leases;
(xiii) the cost of electricity furnished to any
area of the Building leased to or occupied by
tenants or available for leasing to tenants;
(xiv) interest on and amortization of debts,
including mortgages (excluding reasonable interest
charges on maintenance or other business equipment
located at the Building);
(xv) expenditures for capital improvements except
for capital expenditures (y) required by any Legal
Requirement not now in effect, to be amortized in
accordance with generally accepted accounting
principles consistently applied ("GAAP") as more
fully set forth in Section 2.2(B)(8)(d), or (z)
made for the purpose of saving or reducing
Operating Costs (as, e.g., a labor-savings
improvement or a replacement of a then-existing
improvement which Landlord reasonably determines
would be more economically or commercially prudent
than a repair of such then-existing improvement),
to be amortized over the time Landlord reasonably
estimates such savings or reduction in Operating
Costs will equal the cost of the improvement and
otherwise in accordance with Section 2.2(B)(8)(d);
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(xvi) the costs of any additions to or expansions
of the leasable area of the Building;
(xvii) any costs of completing the Phase I or Phase
II Base Building Work;
(xviii) brokerage commissions, consulting fees,
points, legal costs and similar payments with
respect to procuring or removing tenants, amending
or terminating leases, or in connection with any
mortgaging, financing, selling or overleasing of
the Property;
(xix) costs to remove any hazardous materials which
is the responsibility of Landlord to remove
pursuant to this Lease or of any other tenant of
the Building pursuant to any other lease;
(xx) costs incurred with respect to a transfer or
disposition of all or any part of the Building or
any interest therein;
(xxi) costs incurred in contesting or settling any
claimed violation of Legal Requirements, if said
claimed violation exists as of the Commencement
Date of this Lease;
(xxii) fees or expenditures paid by Landlord to any
affiliate of Landlord to the extent such payment
exceeds the amount which would have been paid in
the absence of such a relationship;
(xxiii) costs related to installing, operating and
maintaining any specialty facility such as a
dining-cafeteria facility, athletic or any other
recreational facility to the extent such costs are
for services or other amenities not made available
for use by Tenant, or for which Tenant is charged
directly;
(xxiv) costs and expenses related to the
acquisition of air rights;
(xxv) rent, additional rent or other charges
payable by Landlord under any lease or sublease
assumed by Landlord;
(xxvi) costs of works or art of the quality and
nature of "fine art" rather than decorative art
work customarily found in comparable office
buildings located in the Comparable Market; and
(xxvii) any expenses in connection with services or
other amenities which are above the level of
services or other amenities provided to Tenant or
for which Tenant is charged directly;
(xxviii) costs and expenses required to be paid by
Tenant pursuant to this Lease, other than the
provisions of this Article 2;
(xxix) any costs and expenses reimbursed by any
other tenant of the Building; and
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(xxx) the balance of any Recreational Costs payable
by Landlord.
(c) If, during all or part of any Comparison Year,
Landlord shall not furnish any particular item(s) of work or any service
which would constitute an Operating Cost to any leasable premises in the
Building because: (i) such premises is/are not occupied or leased; or (ii)
such item of work or service is not required or desired by the tenant(s)
occupying such premises because (A) such tenant(s) is itself obtaining and
providing such item or work or service, or (B) for any other reason, then
Operating Costs for such period shall be deemed to include an amount equal
to the additional costs and expenses which would reasonably have been
incurred during such period by Landlord if it had furnished such item of
work or services to such portion(s) of the Building or to such tenant(s).
(d) Landlord shall amortize or depreciate the cost of
capital improvement items included in Operating Costs over the reasonable
useful life of such improvements (as determined by Landlord in accordance
with GAAP with interest at the rate of two (2%) over the "base" lending
rate announced by Chase Manhattan Bank from time to time.
(9) "Operating Statement" shall mean an instrument or
instruments setting forth a final comparison of actual Operating Costs and
the "Operating Payment" (as defined in Section 2.4(A) below) due and owing
with respect to Operating Costs for the preceding Comparison Year and
showing the categories of Operating Costs then typically itemized by
owners of comparable buildings in the Comparable Market and substantially
similar to the Operating Costs categories in Landlord's pro forma budget
as shown on Schedule 3 annexed hereto and made a part hereof.
(10) "Tax Statement" shall mean a statement setting forth a
comparison of the Taxes for the Tax Year with the Base Tax Amount, and the
"Tax Payment" (as defined in Section 2.3 (A) below) due and owing.
(11) "Declaration" shall mean that certain Declaration of
Covenants, Restrictions, Easements, Charges and Liens of the Newport
Property Owners Association, Inc. ("POA") dated as of July 28, 1992, but
deemed effective as of September 1, 1987, recorded in the Hudson County
Register of Deeds in Book 4575, Page 243, as amended by First Amendment to
Declaration of Covenants, Restrictions, Easements, Charges and Liens dated
as of July 1, 1993, recorded in the Hudson County Register of Deeds in
Book 4622, Page 096.
(12) "Assessments" shall mean those common area maintenance
charges for the NEWPORT development assessment against the Property by the
POA pursuant to the Declaration.
(13) "Base Tax Amount" shall mean and be equal to $1,100,000.
(14) "Base Operating Costs Amount" shall mean and be equal to
$2,875,853.
Section 2.3 (A) If Taxes for any Tax Year (any part or all of which falls
within the Term) shall increase above the Base Tax Amount, Tenant shall pay as
Additional Rent an amount equal to Tenant's Tax Share of such increase (the "Tax
Payment"), which amount shall be payable as hereinafter provided.
(B) At any time within twelve (12) months after the commencement of
each Tax Year, Landlord shall render to Tenant a Tax Statement showing (1) a
comparison of the Taxes for the Tax Year with the Base Tax Amount, and (2) the
amount of the Tax Payment resulting from such comparison. On the first day of
the month following the furnishing to Tenant of a Tax
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<PAGE> 23
Statement, Tenant shall pay to Landlord a sum equal to one-twelfth (1/12th) of
the Tax Payment shown thereon to be due for such Tax Year multiplied by the
number of months (and any fraction thereof) of the Term then elapsed since the
commencement of such Tax Year. If Landlord furnishes a Tax Statement for a Tax
Year subsequent to the commencement thereof, until the first day of the month
following the month in which the Tax Statement is furnished to Tenant: (x)
Tenant shall continue to pay to Landlord on the first day of each month an
amount equal to the monthly sum payable by Tenant to Landlord with respect to
the next previous Tax Year; (y) promptly after the Tax Statement is furnished to
Tenant, Landlord shall give notice to Tenant stating whether the amount
previously paid by Tenant to Landlord for the current Tax Year was greater or
less than the installments of the Tax Payment to be paid for the current Tax
Year in accordance with the Tax Statement, and (a) if there shall be a
deficiency, Tenant shall pay the amount thereof as Additional Rent in accordance
with Section 2.1(C), or (b) if there shall have been an overpayment, Landlord
shall credit the amount thereof against the next monthly installments of
regularly occurring Additional Rent payable under this Lease (or, if any portion
of such overpayment remains uncredited at the Expiration Date, Landlord shall
promptly refund the balance of such overpayment to Tenant after deducting any
then-outstanding monies owed to Landlord hereunder); and (z) on the first day of
the month following the month in which the Tax Statement is furnished to Tenant,
and monthly thereafter throughout the remainder of the current Tax Year, Tenant
shall pay to Landlord an amount equal to one-twelfth (1/12th) of the Tax Payment
shown on the Tax Statement. Tax Payments shall be collectible by Landlord in the
same manner as Fixed Rent. Subject to Section 2.6, Landlord's failure to render
a Tax Statement shall not prejudice Landlord's right to render a Tax Statement
during or with respect to any subsequent Tax Year, and shall not eliminate or
reduce Tenant's obligation to make a Tax Payment for such Tax Year. If the
amount of any overpayment cannot be recouped by credit under clause (b) of this
subsection (B) within thirty (30) days from the date the overpayment has been
determined, then interest shall accrue on the unpaid balance of the overpayment
from the thirty-first (31st) day at the Interest Rate.
(C) If Landlord shall receive a refund of Taxes applicable to any
Tax Year for which a Tax Payment shall have been made by Tenant, Landlord shall
notify Tenant and, at its option, shall either repay to Tenant or credit against
subsequent payments of Additional Rent hereunder, Tenant's Tax Share of such
refund, after deducting from the refund the costs and expenses of obtaining the
same (to the extent such costs and expenses were not theretofore included in
Taxes for such Tax Year); provided, however, that Tenant's Tax Share of such
refund shall in no event exceed Tenant's Tax Payment paid for the particular Tax
Year in question. The expiration or termination of this Lease during any Tax
Year shall not affect Landlord's obligation to so repay or credit Tenant's Tax
Share of any refund with respect to such Tax Year, and such obligation shall
survive any such expiration or termination of this Lease. If the amount of any
refund is not paid to Tenant or recouped by a credit against subsequent payments
of Additional Rent within thirty (30) days from the date the refund was received
by Landlord, then interest shall accrue on the unpaid balance of the overpayment
from the thirty-first (31st) day at the Interest Rate.
(D) Tenant shall pay, prior to delinquency, any and all taxes levied
against any of Tenant's Property placed by Tenant in or about the Premises. If
any such taxes on Tenant's Property are levied against Landlord or the Property,
or if the assessed valuation of the Property is increased by the inclusion
therein of a value attributable to Tenant's Property, as so evidenced by the tax
assessor's worksheets or other similar documentation, Landlord shall have the
right, but not the obligation, to pay such taxes. The amount of any such payment
by Landlord shall constitute Additional Rent payable by Tenant upon demand.
(E) If any alterations or improvements made to the Premises by or on
behalf of Tenant, irrespective of ownership thereof, are assessed for real
property tax purposes at a valuation higher than the valuation at which
improvements conforming to Landlord's "building standard" in other spaces in the
Building are assessed, as evidenced by the tax assessor's worksheets or other
similar documentation, then the Taxes levied against Landlord or the Property by
reason of such excess assessed valuation shall be deemed to be taxes levied
against Tenant's Property and shall be governed by the provisions of clause (D)
above. Similarly, Tenant shall not
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<PAGE> 24
be required to pay its share of any Taxes which are increased because of
alterations or improvements made to any other tenant's premises in the Building
which are assessed for real property tax purposes at a valuation higher than the
valuation at which building standard improvements are assessed, as so evidenced
by the tax assessor's worksheets or other similar documentation.
Section 2.4 (A) If the Operating Costs for any Comparison Year (any part
or all of which falls within the Term) shall increase above the Base Operating
Costs Amount, then Tenant shall pay as additional rent for such Comparison Year
an amount equal to Tenant's Operating Share of such increase (such amount is
called the "Operating Payment"), which amount shall be payable as hereinafter
provided.
(B) (1) By no later than May 1st of each Comparison Year, Landlord
shall render to Tenant a written statement ("Landlord's Estimate") setting
forth Landlord's reasonable estimate of the Operating Payment for such
Comparison Year, which shall be based on the comparison of the estimated
increase in the Operating Costs for such Comparison Year with the Base
Operating Costs Amount, but such estimated amount shall not exceed the
Operating Costs (excluding snow removal costs and insurance premiums) for
the immediately preceding Comparison Year (or in the case of the first
Comparison Year, the amount of the Base Operating Costs Amount) multiplied
by one hundred five percent (105%), plus the amount of snow removal costs
and insurance premiums as estimated by Landlord for such Comparison Year.
(2) If Landlord furnishes a Landlord's Estimate for any
Comparison Year subsequent to the commencement thereof, Tenant shall pay
to Landlord an amount equal to one-twelfth (1/12th) of the Operating
Payment shown thereon to be due for such Comparison Year multiplied by the
number of months (and any fraction thereof) of the Term then elapsed since
the commencement of such Comparison Year (less any amounts already paid by
Tenant on account of the Operating Payment since the beginning of such
Comparison Year). Until the first day of the month following the month in
which the Landlord's Estimate is so furnished to Tenant, Tenant shall
continue to pay to Landlord on the first day of each month an amount equal
to the monthly sum payable by Tenant to Landlord with respect to the
immediately preceding Comparison Year. On the first day of the month
following the month on which the Landlord's Estimate is furnished to
Tenant, and monthly thereafter throughout the remainder of the current
Comparison Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12th) of the Operating Payment shown on the Landlord's
Estimate.
(3) After the end of each Comparison Year, but no later than
the following May 1, Landlord shall furnish to Tenant an Operating
Statement for such Comparison Year. If the Operating Statement shall show
that the sums paid by Tenant based upon Landlord's Estimate for such
Comparison Year exceed Tenant's Operating Payment required to be paid by
Tenant for such Comparison Year, Landlord shall pay to Tenant the amount
of such excess within thirty (30) days after the Operating Statement has
been furnished, and in the event such refund has not been made within such
thirty (30) day period, the refund shall accrue interest at the Interest
Rate. If the Operating Statement for such Comparison Year shall show that
the sums so paid by Tenant were less than Tenant's Operating Payment for
such Comparison Year, Tenant shall pay the amount of such deficiency
within thirty (30) days after receipt by Tenant of such Operating
Statement. Operating Payments, whether based on a Landlord's Estimate or
an Operating Statement, shall be collectible by Landlord in the same
manner as Fixed Rent. Subject to Section 2.6, Landlord's failure to render
an Operating Statement shall not prejudice Landlord's right to render an
Operating Statement during or with respect to any subsequent Comparison
Year, and shall not eliminate or reduce Tenant's obligation to make an
Operating Payment for such Comparison Year.
Section 2.5 Each Tax Statement and Operating Statement shall be conclusive
and
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<PAGE> 25
binding upon Tenant and Landlord unless within one hundred twenty (120) days
after the receipt of such Tax Statement or Operating Statement, as the case may
be, Tenant or Landlord shall notify the other that it wishes to verify the
correctness thereof or that a mistake has been made in the calculation, as the
case may be. If the parties cannot agree on the correctness thereof or the
calculations, then either party may submit the dispute to arbitration, as
provided in Article 34 hereof, within one hundred fifty (150) days after receipt
of said Tax Statement or Operating Statement. Pending the determination of such
dispute by agreement or arbitration as aforesaid, Tenant shall pay the
Additional Charges, as additional rent, in accordance with Section 2.3 and
Section 2.4 above. If the dispute shall be determined in Tenant's favor,
Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment of
Additional Charges resulting from compliance with the Tax Statement or Operating
Statement, as the case may be together with interest on such overpayment at the
Interest Rate accruing from the last day of the Tax Year or Comparison Year, as
the case may be, which is the subject of such dispute. Upon twenty (20) days
prior written notice from Tenant (which notice shall be given within the
aforesaid one hundred twenty (120) day period), Landlord agrees to permit
Tenant's employees or outside consultants, accountants or other advisers
selected by Tenant reasonable access (for a reasonable period not to exceed
thirty (30) days following the initial appointment date) to review Landlord's
books and records applicable to the Building for the Comparison Year in question
for the purpose of verifying Operating Costs. Any such review shall be conducted
at any office of Landlord or its managing agent located in the tri-state area
or, if no such office exists or if Landlord otherwise elects, at the Building.
Tenant, on behalf of itself and such permittees agrees to keep any and all
information obtained thereby strictly confidential (except to the extent
relevant to any arbitration proceeding as aforesaid).
Section 2.6 The expiration or termination of this Lease during any
Operating Year or Tax Year shall not affect the rights and obligations of the
parties hereto respecting any payments of Operating Payments due for such
Operating Year and any payments of Tax Payments for such Tax Year provided
Landlord renders to Tenant a Tax Statement or Operating Statement, as the case
may be, within twelve (12) months following such Operating Year or Tax Year, as
applicable. Any Operating Statement relating to such Operating Payment and any
Tax Statement relating to such Tax Payment may be sent to Tenant subsequent to,
and all such rights and obligations shall survive, any such expiration or
termination (subject to the twelve (12) month limitation aforesaid). In
determining the amount of the Operating Payment for the Operating Year or the
Tax Payment for the Tax Year in which the Term shall expire, the payment of the
Operating Payment for such Operating Year or the Tax Payment for the Tax Year
shall be prorated based on the number of days of the Term which fall within such
Operating Year or Tax Year, as the case may be. Any payments due under such
Operating Statement or Tax Statement shall be payable within twenty (20) days
after such Operating Statement or Tax Statement, as the case may be, is sent to
Tenant.
Section 2.7 In the event Tenant timely and validly exercises the Renewal
Option for the Renewal Term, as provided in Article 1 of this Lease, the parties
hereto agree that the Fixed Rent for the Renewal Term shall be as follows:
(A) The Fixed Rent for the Premises for a Renewal Term (the "Rental
Value") shall be an amount equal to ninety-five percent (95%) of the annual fair
market rental value of the Premises (the "Fair Market Rent") as of the Renewal
Term Commencement Date for the Renewal Term in question. The Fair Market Rent
shall be determined on the basis of the highest and best use of the Premises as
offices assuming that the Premises are free and clear of all leases and
tenancies (including this Lease), and without regard to any "Specialty
Alterations" (as defined in Section 4.6) theretofore installed by or on behalf
of Tenant, that the Premises were available in the then rental market for
comparable first-class office buildings of similar quality, size, age, character
and location of the Building (the "Comparable Market"), that Landlord has had a
reasonable time to locate a tenant who rents with the knowledge that the
Premises can be used as offices, that neither Landlord nor the prospective
tenant is under any compulsion to rent, and taking into account:
(1) that the Base Tax Amount for purposes of calculating
increases in
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Taxes and the Base Operating Costs Amount for purposes of calculating
increases in Operating Costs, respectively (a) for the First Renewal Term,
shall change to and be the amounts of the Taxes and Operating Costs,
respectively, for the calendar year in which the First Renewal Term
Commencement Date shall occur, and (b) for the Second Renewal Term, shall
change to and be the amounts of the Taxes and Operating Costs,
respectively, for the calendar year in which the Second Renewal Term
Commencement Date shall occur, respectively, as the case may be;
(2) that if the Tax Agreement is then in effect, the fact that
Tenant may realize a cost savings with respect to its obligation to pay a
share of Taxes or, if the Tax Agreement is scheduled to expire during the
subject Renewal Term, that Tenant may not realize a cost savings with
respect to its obligation to pay a share of Taxes levied after such
scheduled expiration of the Tax Agreement;
(3) that as of a particular Renewal Term Commencement Date,
Tenant shall not be required to pay, in addition to the Additional Charges
presently provided for under this Lease, Tenant's Tax Share and Tenant's
Operating Share of Additional Charges or other escalation payments which
Landlord is then charging tenants under other leases or offers for leases
in the Building or in other buildings then owned by Landlord or its
affiliates or under common management with the management company then
managing the Building, respectively, or of such other escalation payments
which other landlords are then charging tenants under leases or offers for
leases in other office buildings located in the Comparable Market;
(4) if true, that a brokerage commission would not be payable
by Landlord with respect to the Renewal Term;
(5) if it is then customary for owners of comparable buildings
in the Comparable Market to do so with respect to leases for a term of the
length of the Renewal Term (i.e., five (5) years), that Landlord shall not
be deemed to have (a) any incurred costs or expenses for the performance
of any work to prepare the Premises for Tenant's continued occupancy
thereof, or (b) granted any rental concessions or improvement allowances
typically granted to a new tenant; provided, however, that if no leases
are being granted by Landlord or other owners of comparable buildings in
the Comparable Market having a term of five (5) years, then a rental
concession or improvement allowance for the Renewal Term shall be
calculated pro rata to those typically granted under a longer term lease
(e.g, if the then typical rent concession for a 15-year lease shall be $30
per rentable square foot, then the rental concession for a 5-year lease
shall be $10 per rentable square foot);
(6) the then current rentals or occupancy fees which Landlord
or other owners of comparable buildings in the Comparable Market shall
then be receiving for the renting of or granting of use or occupancy
rights for comparable office space in the Building or in such other
comparable buildings, as the case may be, for the purposes described in
this Lease, for the length of the Renewal Term (i.e., five (5) years) and
the manner in which technological, engineering and/or other specific
advances over time shall affect the utilization of such space in the
Building and such comparable buildings in the Comparable Market; provided,
however, that if no leases are being granted by Landlord or other owners
of comparable buildings in the Comparable Market having a term of five (5)
years, then the Fixed Rent for the Renewal Term shall be the amount of
fixed rent under a longer term lease, averaged over the term of such
longer-term lease (e.g., if the fixed rent under a comparable 15-year
lease shall be $20 per RSF for lease years one through five, $30 per RSF
for lease years six through ten and $40 per RSF for lease years eleven
through fifteen, then the Fixed Rent for the Renewal Term shall be $30 per
RSF).
Tenant's obligation to pay Additional Charges, as additional rent, on account of
increases in the amounts of the Taxes and Operating Costs, as the case may be,
as set forth in Sections 2.3 and 2.4, shall continue during the Renewal Terms
(subject to adjusted base amounts as more fully set
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<PAGE> 27
forth in Section 2.7(A)(1)).
(B) For purposes of determining the Fair Market Rent, the following
procedure shall apply:
(1) Landlord shall give Tenant written notice (the "Rent
Notice") at least nine (9) months prior to (a) the Fixed Expiration Date
in the case of the First Renewal Term, and (b) the First Renewal Term
Expiration Date in the case of the Second Renewal Term, as the case may
be, setting forth Landlord's determination of the Fair Market Rent for the
First Renewal Term and the Second Renewal Term, as the case may be. If
Landlord shall fail or refuse to give the Rent Notice as aforesaid,
Landlord's determination of the Fair Market Rent shall be deemed to be the
Fixed Rent and Additional Charges payable by Tenant on (x) the Fixed
Expiration Date in the case of the First Renewal Term, and (y) the First
Renewal Term Expiration Date in the case of the Second Renewal Term, as
the case may be. The amount of the Fair Market Rent set forth in the Rent
Notice, or the deemed amount in the case where Landlord has failed to
deliver a Rent Notice, shall be called "Landlord's Determination."
(2) Tenant shall give Landlord written notice (the "Tenant's
Notice") (a) within thirty (30) days after Tenant's receipt of the Rent
Notice, or (b) if Landlord has failed to deliver a Rent Notice as
aforesaid then at least thirty (30) days prior to (i) the Fixed Expiration
Date in the case of the First Renewal Term, and (ii) the First Renewal
Term Expiration Date in the case of the Second Renewal Term, as the case
may be, that Tenant accepts or disputes Landlord's Determination. If
Tenant in Tenant's Notice accepts Landlord's Determination or if Tenant
fails or refuses to give Tenant's Notice, as aforesaid, Tenant shall be
deemed to have accepted Landlord's Determination for the Renewal Term in
question. If Tenant, in Tenant's Notice, disputes Landlord's
Determination, Tenant shall deliver to Landlord, together with Tenant's
Notice, Tenant's determination of the Fair Market Rent (the "Tenant's
Determination"), as determined by an independent real estate appraiser or
an "independent real estate broker" (as hereinafter defined) (the
"Tenant's Appraiser"), together with a copy of the appraisal prepared by
Tenant's Appraiser.
(3) Landlord shall give Tenant written notice (the "Landlord's
Notice"), within thirty (30) days after Landlord's receipt of Tenant's
Determination, that Landlord accepts or disputes Tenant's Determination.
If Landlord in Landlord's Notice accepts Tenant's Determination or if
Landlord fails or refuses to give Landlord's Notice as aforesaid, Landlord
shall be deemed to have accepted Tenant's Determination. If Landlord
disputes Tenant's Determination, Landlord shall appoint an independent
real estate appraiser or independent real estate broker (the "Landlord's
Appraiser") and Landlord will deliver to Tenant a copy of the appraisal
prepared by Landlord's Appraiser together with Landlord's Notice. If,
within thirty (30) days after Tenant's receipt of Landlord's Notice in
dispute, Landlord's Appraiser and Tenant's Appraiser shall mutually agree
upon the determination (the "Mutual Determination") of the Fair Market
Rent, their determination shall be final and binding upon the parties. If
Landlord's Appraiser and Tenant's Appraiser shall be unable to reach a
Mutual Determination within said thirty (30) day period, both of the
Appraisers shall jointly select a third individual who shall be an
independent real estate appraiser and not a real estate broker (the "Third
Appraiser"), and whose fee shall be borne equally by Landlord and Tenant.
In the event that Landlord's Appraiser and Tenant's Appraiser shall be
unable to jointly agree on the designation of the Third Appraiser within
five (5) days after they are requested to do so by either party, then the
parties agree to allow the American Arbitration Association or any
successor organization to designate the Third Appraiser in accordance with
the rules then obtaining of the American Arbitration Association or such
successor organization.
(4) Within fifteen (15) days following the appointment of the
Third Appraiser, Landlord's Appraiser shall submit a copy of the appraisal
previously forwarded to Tenant under Section 2.7(B)(3) above and Tenant's
appraiser shall submit a copy of its
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appraisal as previously forwarded to Landlord pursuant to Section
2.7(B)(2). Within fifteen (15) days following its receipt of such
appraisals, the Third Appraiser shall commence and thereafter conduct such
hearings and investigations as he may deem appropriate and shall, within
fifteen (15) days after the conclusion of such hearings and
investigations, render his decision by selecting the determination of the
Fair Market Rent submitted by either Landlord's Appraiser or Tenant'
Appraiser which, in the judgment of the Third Appraiser, most nearly
reflects the Fair Market Rent of the Premises for the particular Renewal
Term in question, and such determination by the Third Appraiser shall be
conclusive and binding upon Landlord and Tenant. Each party shall pay its
own counsel fees and expenses, if any, in connection with any arbitration
under this Section 2.7 including the expenses and fees of any Appraiser
selected by it in accordance with the provisions hereof. As used in this
Section 2.7, an "independent real estate appraiser" shall mean a licensed
real estate appraiser with at least ten (10) years' experience in leasing
and valuation of commercial office space in office buildings in northern
New Jersey which are comparable in size, quality, age, location and
character to the Building, and who is a member of the American Institute
of Appraisers of the National Association of Real Estate Boards (or then
equivalent if the AIA does not exist). As used in this Section 2.7, an
"independent real estate broker" shall mean a licensed real estate broker
with at least ten (10) years' experience in leasing and valuation of
commercial office space in office buildings in northern New Jersey which
are comparable in size, quality, age, location and character to the
Building, and who is a member of the Society of Industrial and Office
Realtors (or then equivalent if the SIOR does not exist). The Appraisers
shall not have the power to add to, modify or change any of the provisions
of this Lease.
(5) It is expressly understood that any determination of the
Fair Market Rent shall be based on the assumptions and criteria stated in
this Section 2.7.
(C) After a determination has been made of the Rental Value for the
Renewal Term in question, the parties shall execute and deliver to each other an
agreement setting forth the Rental Value as hereinabove determined.
(D) If the final determination of the Rental Value shall not be made
on or before the Renewal Term Commencement Date for the particular Renewal Term
in question, in accordance with the provisions of this Section 2.7, then pending
such final determination Tenant shall continue to pay, as the Fixed Rent for the
Renewal Term the amount of the Rental Value set forth in the Landlord's
Determination or the deemed amount where Landlord has failed to deliver a Rent
Notice. If, based upon the final determination hereunder of the Rental Value,
the payments made by Tenant on account of the Rent for such portion of the
Renewal Term in question were (x) less than the Rental Value payable for the
Renewal Term, Tenant shall pay to Landlord the amount of such deficiency within
five (5) Business Days after demand therefor, or (y) greater than the Rental
Value payable for the Renewal Term, Landlord shall refund to Tenant the amount
of such excess within five (5) Business Days after demand therefor.
ARTICLE 3
OCCUPANCY; PERMITTED USE; RESTRICTED USES
Section 3.1 Tenant shall use and occupy the Premises as general or
executive offices (the "Permitted Use") and for no other purpose. Tenant will
not at any time use or occupy the Premises in violation of the certificate of
occupancy (whether temporary or permanent) issued for the Premises and/or the
Building, as initially issued or thereafter amended or modified (the
"Certificates of Occupancy"). In the event that any Legal Authority shall
hereafter contend or declare by notice, violation, order or in any other manner
whatsoever that the Premises are used for a purpose which is a violation of the
Certificate of Occupancy then in effect, Tenant, upon five (5) days' written
notice from Landlord or any Legal Authority, shall immediately discontinue such
use of the Premises (subject to Tenant's right to contest any such contention or
declaration by any Legal Authority, as more fully set forth in Section 7.2).
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<PAGE> 29
Section 3.2 Landlord shall obtain a Certificate of Occupancy for the
common areas and core spaces of the Building which Certificate of Occupancy
shall be in force on the date Tenant occupies all or a portion of the Premises
for the Permitted Uses. Landlord agrees not to initially obtain nor amend such
Certificate of Occupancy in any manner which would cause same to prohibit the
use of the Premises for the Permitted Use.
Section 3.3 Tenant shall obtain a temporary or permanent Certificate of
Occupancy for the Premises permitting the Premises to be used as "offices" (as
defined in Section 27(A) hereof) and such temporary or permanent Certificate of
Occupancy will be in force upon the date upon which Tenant shall occupy all or
any portion of the Premises for the Permitted Uses. Tenant will perform such
work (other than Landlord's Work, which Landlord shall be required to perform)
necessary to obtain such Certificate of Occupancy, including without limitation,
the filing of any documents or plans required by the Legal Authority, the
scheduling of inspections and correction of deficiencies, if any, with respect
to the Premises. Landlord shall, by the Rent Commencement Date, perform such
items of Landlord's Work necessary for Tenant to obtain the Certificate of
Occupancy for the Premises.
Section 3.4 Without limitation of the prohibitions contained in Section
3.5 below, and in amplification thereof, Tenant shall not use or occupy or
permit or suffer the Premises to be used or occupied for any purposes other than
the Permitted Use set forth in this Article 3. In no event shall Tenant use or
permit the use of the Premises, or any portion thereof, in any manner which, in
Landlord's judgment, will: (1) materially and adversely affect (a) the
appearance, character, reputation or first-class nature of the Building, or (b)
the proper or economic furnishing of services to other tenants in the Building,
or (c) the use and enjoyment of any other portion of the Building by any other
tenant(s), or (d) the proper and economic functioning of any of the Building
Systems, or (e) Landlord's ability to obtain from reputable insurance companies
authorized to do business in New Jersey, at standard rates, all risk property
insurance or liability, elevator, boiler or other insurance required to be
furnished by Landlord under the terms of any "Superior Lease" and/or "Mortgage"
(as such terms are defined in Section 4.2) covering the Property; (2) violate
any Legal Requirements of Legal Authorities, or any requirements of Insurance
Bodies, or the Certificates of Occupancy; or (3) be in violation of any of the
Restricted Uses as are set forth and defined below in Section 3.5.
Section 3.5 Tenant shall not use or permit the use of the Premises, or any
part thereof for the following uses and/or purposes (collectively, the
"Restricted Uses"): (1) for the business of photographic, multilith or
multigraph reproductions or offset printing (but this "(1)" shall not be deemed
to prohibit Tenant from operating, on an incidental basis, a photocopy center
for the exclusive use of Tenant's employees, subject to and in strict compliance
with all applicable Legal Requirements including Environmental Laws); (2) for
manufacturing of any kind; (3) as a restaurant, employee cafeteria, or bar or
for the sale of confectionery, beverages, sandwiches, ice cream or baked goods
or for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever (except in private kitchens (which may include a countertop
microwave oven) and vending machines serving the Premises and Tenant's employees
and visitors only); (4) as a retail bank offering banking services to the
general public (i.e., off-the-street customers or potential customers, but
excluding sales conducted by phone or computer) or other retail financial
services office offering financial services to the general public (i.e.,
off-the-street customers or potential customers, but excluding sales conducted
by phone or computer); (5) as a trade school, employment agency or travel
agency, labor union office, physician's, dentist's, medical or psychiatric
office, medical or dental laboratory, dance or music studio, or health club or
sports or exercise facility (except for a nurse's or first aid station); (6) as
a barber shop or beauty salon; (7) for the direct sale, at retail or otherwise,
of any goods or products of any sort or kind; (8) by any Legal Authority or
instrumentality, or by any foreign or domestic governmental or
quasi-governmental entity entitled, directly or indirectly, to diplomatic or
sovereign immunity or not subject to the service of process in, and the
jurisdiction of, the courts of the State of New Jersey; (9) for the retail sale
of traveler's checks and/or foreign exchange to the general public (i.e.,
off-the-street customers or potential customers, but excluding sales conducted
by phone or computer); (10) for the conduct of an auction; (11) for gambling
activities; (12) for the conduct of obscene, pornographic, similar type or any
other disreputable activities or for the sale of
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obscene, pornographic or similar type books, magazines, periodicals or other
literature or materials, as determined by Landlord in its sole judgment; or (13)
by or for any charitable, religious or other not-for-profit organization's
activities, other than activities which are limited to office use only.
ARTICLE 4
ALTERATIONS
Section 4.1 (A) (1) Tenant shall make no "Alterations" (as hereinafter
defined) in or to the Premises, of any nature, without Landlord's prior written
consent, which shall be granted or withheld in the manner as hereinafter
provided. For the purposes of this Lease, the term "Alteration" shall mean any
change, alteration, installation, addition or improvement, whether of a
structural or non-structural nature, which Tenant shall make or perform to the
Premises at any time during the Term, including all initial alterations,
installations, additions or improvements (collectively, the "Tenant's Initial
Alterations") proposed to be made by Tenant to adapt the Premises for the
Permitted Use.
(2) Landlord shall not unreasonably withhold its consent to
any Alterations, provided (a) such Alterations, in the sole reasonable
opinion of Landlord, will not affect the proper functioning of the
Building Systems, (b) such Alterations will not result in a violation of,
or require a change in, the Certificates of Occupancy for the Building
and/or the Premises, (c) the character, outside appearance, usefulness or
rentability of the Building or any part thereof will not be adversely
affected in any way, and such Alterations will not, in the sole opinion of
Landlord, weaken, impair (temporarily or permanently) or impact on the
Building's structural elements such as the roof, exterior/load bearing
walls (including exterior windows), foundation, structural floor slabs,
support columns and other common Building facilities (collectively, the
"Structural Elements"), or lessen the value or utility of the Premises or
the Building upon their completion, and (d) such Alterations, when
completed, would not physically affect any part of the Building outside of
the Premises (the aforesaid Alterations set forth in (a) through (d)
hereof are hereinafter called "Non-Structural Alterations").
(B) Landlord shall have the right, in its sole and absolute
discretion, to approve or disapprove of any Alteration(s) which are not
Non-Structural Alterations.
Section 4.2 Prior to making any Alterations, including, but not limited
to, Tenant's Initial Alterations, Tenant shall (a) submit to Landlord detailed
plans and specifications (including drawings for layout, architectural,
mechanical, structural, interior design, fixturing and finishing work) for each
proposed Alteration and shall not commence any such Alteration without first
obtaining Landlord's written approval of such plans and specifications (except,
however, Landlord's approval will not be required with respect to any
Non-Structural Alteration referred to in Section 4.9 hereof), which , in the
case of Non-Structural Alterations which meet the criteria set forth in Section
4.1(A) above, shall not be unreasonably withheld or delayed, and (b) obtain
worker's compensation and disability insurance in statutory limits (covering all
persons employed and to be employed by Tenant, including Tenant's contractors
and subcontractors engaged in connection with any such Alteration), builder's
risk insurance covering all physical loss and other risks covered by the usual
extended coverage and "all risk" endorsements, and comprehensive public
liability (including property damage coverage), which builder's risk and
comprehensive public liability insurance policies shall be in such form, with
such companies, for such periods and such amounts as Landlord may require, and
shall name, as additional insureds, Landlord, its agents, any lessee under any
ground or underlying lease now or hereafter affecting the Land or the Building
(any such lease is called a "Superior Lease"), and any holder of any mortgage
which may now or hereafter affect any Superior Lease or the Land or the
Building, respectively (any such mortgage is called a "Mortgage"). Landlord
agrees to respond to Tenant's request for approval within ten (10) Business Days
following Landlord's receipt of the items required pursuant to this Section 4.2
(or, with respect to any resubmission of plans and specifications, within five
(5) Business Days following Landlord's receipt of such revised plans and
specifications). If Landlord fails to timely respond, and such failure to
respond continues for
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more than two (2) Business Days following Landlord's receipt of a notification
from Tenant that Landlord's failure to respond to Tenant's request shall result
in the plans and specifications being deemed approved by Landlord, then
Landlord's failure to respond within such two (2) Business Day period shall
constitute Landlord's approval of such plans and specifications.
Section 4.3 Tenant hereby acknowledges and agrees that Landlord's review
of, and Landlord's granting of its approval to, any plans and specifications
submitted to it under this Lease shall not constitute or be deemed to constitute
a judgment, acknowledgment, representation or agreement by Landlord that such
plans and specifications comply with the Legal Requirements of any Legal
Authorities and/or the requirements of any Insurance Bodies, and/or that such
plans and specifications will be approved by the Jersey City Department of
Buildings (the "Buildings Department") or any other Legal Authority,
respectively, as the case may be. Tenant further acknowledges and agrees that
all such compliance and approval requirements shall be Tenant's sole obligation,
as required by the provisions of this Article 4.
Section 4.4 (A) Tenant shall, before making any Alterations, at its
expense, obtain all permits, approvals and certificates (collectively, the
"Permits") required by any Legal Authority and (upon completion) certificates of
final approval thereof and shall deliver promptly to Landlord duplicates of all
such Permits, together with the "as-built" plans and specifications (or marked
shop drawings) for such Alterations. In that regard, Landlord agrees to
reasonably cooperate with Tenant in the signing of any documents and plans
required to obtain any Permit, provided, however, Landlord thereby incurs no
liability, fee, cost or expense, unless Tenant shall reimburse Landlord for
same.
(B) All Alterations shall be made and performed substantially in
accordance with the plans and specifications therefor, as approved by Landlord,
and also in accordance with the rules and regulations established and
consistently applied by Landlord governing the manner in which work may be
performed in the Building and in effect at the time such Alterations are
undertaken. Tenant hereby acknowledges having received from Landlord a set of
the initial rules and regulations for the performance of Tenant's Initial
Alterations in the Building. Where a conflict exists between the terms of such
rules and regulations and the terms of this Lease, the terms of this Lease shall
prevail. No material amendments or additions (or amendment or additions of any
kind if same may affect any of the Structural Elements or the Building Systems)
to the aforesaid plans and specifications shall be made without the prior
written consent of Landlord which, in the case of Non-Structural Alterations
which meet the criteria set forth in Section 4.1(A) above, shall not be
unreasonably withheld or delayed. All materials, equipment and fixtures to be
incorporated in the Premises as a result of such Alterations shall be new and
good quality. No such materials, equipment or fixtures shall be subject to any
liens, encumbrances, chattel mortgages or security interests (as such terms are
defined in the Uniform Commercial Code as in effect in the State of New Jersey
on the date hereof) or any other title retention or security agreement. Tenant
shall perform all Alterations at Tenant's sole cost and expense, with
contractors or mechanics reasonably approved by Landlord and shall complete such
Alterations within a reasonable time after undertaking their performance,
subject to Unavoidable Delays. All Alterations shall be done at such times as
Landlord may from time to time reasonably designate. Notwithstanding the
foregoing sentence, with respect to the performance of Tenant's Initial
Alterations only, it is hereby agreed that Tenant may perform its work during
all hours permitted by Legal Requirements provided that such work does not
interfere with any other tenant or occupant of the Building. If any such
Alterations affect the Building's fire protection and safety systems, Landlord
shall have the right to require that such Alterations be performed by Landlord
and/or Landlord's contractor(s) at Tenant's cost and expense, which cost and
expense shall be commercially reasonable.
(C) Tenant shall not, at any time prior to or during the Term,
directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer, whether in connection with any Alteration or otherwise, if
such employment would interfere, cause any conflict, or create any difficulty,
strike or jurisdictional dispute with, other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others. In the event of any such interference, conflict,
difficulty, strike, or
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jurisdictional dispute, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing the same to leave the Building
immediately.
Section 4.5 Tenant hereby indemnifies and saves harmless Landlord from and
against any liability, loss, cost, damage and expense of every kind and nature
incurred by reason of, or arising out of, any and all mechanic's and other liens
filed in connection with any Alterations or repairs undertaken by Tenant
hereunder, including, without limitation, the liens of any conditional sales, or
chattel mortgages, title retention agreements, security agreements or financing
statements upon any materials, fixtures, furniture or equipment installed in and
constituting a part of the Premises. Tenant shall pay in accordance with the
terms of its contracts, in cash, the cost of all Alterations and repairs. Any
mechanic's or other lien filed against the Premises or the Property for work
claimed to have been performed for, or materials claimed to have been furnished
to Tenant shall be discharged by Tenant by bonding, payment or otherwise, within
thirty (30) days after the filing of such lien. If Tenant shall fail to cause
any such lien to be discharged within the aforesaid period, then in addition to
any other available right or remedy, Landlord may, but shall not be obligated
to, discharge same, either by deposit or bonding proceedings. Any amount so
paid, and all costs and expenses so incurred by Landlord in connection
therewith, shall constitute Additional Rent hereunder, and shall bear interest
thereon at the Interest Rate until paid by Tenant to Landlord.
Section 4.6 (A) All Alterations, including Tenant's Initial Alterations,
and all fixtures (other than moveable trade fixtures, as hereinafter provided)
equipment, furnishings, paneling, partitions, railings and like installations,
installed in the Premises at any time, shall, upon installation, become the
property of Landlord and shall remain upon and be surrendered with the Premises;
provided, however, that if Landlord notifies Tenant in writing (1) at the time
of Landlord's approval of any Alterations to the Premises requiring Landlord's
approval, including Tenant's Initial Alterations, or (2) within thirty (30) days
after Landlord has received notice of such Alterations where notice is required
under Section 4.9 hereof, then Landlord may, at Landlord's option, require
Tenant to remove any Alterations which are specialty alterations in excess of
standard office installations, such as kitchens (excluding pantries),
cafeterias, executive bathrooms, vaults (but excluding reinforced floors),
sloping or terraced floors, internal staircases, dumbwaiters, fire suppression
or uninterrupted power supply systems, vertical and horizontal transportation
systems and other improvements of a similar nature (collectively, "Specialty
Alterations"), at the expiration or earlier termination of this Lease and
restore the Premises to its condition immediately preceding the making of such
Alterations. It is expressly agreed that raised computer flooring is not a
Specialty Alteration for purposes of this Lease. Notwithstanding the foregoing
provisions of this Section 4.6(A), Tenant hereby acknowledges and agrees that
Tenant shall be required to remove from the Premises all Alterations which
Tenant has placed or installed therein without Landlord's approval (where such
approval was required pursuant to this Article 4) or without notice to Landlord
or which are not performed in accordance with the terms of this Article 4, and
to restore the Premises as a result of such removal, at the expiration or
earlier termination of this Lease. Tenant shall repair any damages to the
Premises or the Building caused by the removal of any of the aforesaid items,
such repairs to be performed in a good and workmanlike manner.
(B) All personal property, furniture, furnishings, moveable
equipment, moveable trade fixtures and moveable partitions supplied by or
installed by or on behalf of Tenant (collectively, the "Tenant's Property")
prior to and during the Lease term, shall remain the property of Tenant and
Tenant shall, upon the Expiration Date, remove Tenant's Property from the
Premises, but only to the extent that Tenant's Property (or any portion thereof)
is not affixed or attached to, or built into the Premises or any of the Building
Systems, and/or can be removed without damage to the Structural Elements; and
provided, further that Tenant shall repair any damage to the Premises and the
Building caused by such removal, in a good and workmanlike manner. Any of the
Tenant's Property not so removed by Tenant at or prior to the Expiration Date,
shall be deemed abandoned and may, at the election of Landlord, either be
retained by Landlord as Landlord's property or may be removed from the Premises
and stored or disposed of by Landlord, all at Tenant's sole risk and expense.
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Section 4.7 Tenant shall reimburse Landlord for all reasonable costs and
expenses incurred by Landlord in connection with the review of Tenant's plans
and specifications for Tenant's Initial Alterations, or in connection with the
inspection of the progress of completion thereof which in any way interface with
any of the Building Systems (including Landlord's customary supervisory fee with
respect thereto), which reimbursement shall not exceed $25,000. With respect to
Alterations made after Tenant's Initial Alterations, Tenant shall reimburse
Landlord for (i) all reasonable out-of-pocket costs and (ii) reasonable expenses
incurred by Landlord in connection with the review of plans and specifications
for Alterations (excluding Non-Structural Alterations) and/or inspecting or
supervising the progress of completion of same. Tenant also shall pay any fee
charged by any Lessor or Mortgagee in reviewing the plans and specifications for
such Alterations or inspecting the progress of completion of the same. Landlord
represents to Tenant that the current Lessors and Mortgagee do not require the
payment of such fees.
Section 4.8 Upon the request of Tenant, Landlord, at Tenant's cost and
expense, shall promptly join in any applications for any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (provided that the provisions of the applicable Requirement shall
require that Landlord join in such application) and shall otherwise cooperate
with Tenant in connection therewith, provided that Landlord shall not be
obligated to incur any cost or expense, including, without limitation,
attorneys' fees and disbursements, unless Tenant shall reimburse Landlord for
the same, or suffer any liability in connection therewith.
Section 4.9 Anything contained in this Lease to the contrary
notwithstanding, Landlord's consent shall not be required with respect to any
Non-Structural Alteration, provided that (a) consent for such Non-Structural
Alteration is not required under the terms of any Superior Lease or Mortgage
(which consent is not required under the current Superior Leases and Mortgage),
(b) such NonStructural Alteration meets the conditions set forth in clauses (a)
through (d) of Section 4.1(A) hereof, and (c) the estimated cost of the labor
and materials for which shall not exceed One Hundred Thousand Dollars
($100,000), either individually or in the aggregate with other Non-Structural
Alterations constructed within any twelve (12) month period; provided, however,
that at least ten (10) days prior to making any such Non-Structural Alteration,
Tenant shall submit to Landlord for informational purposes only the detailed
plans and specifications for such Non-Structural Alteration, as required by
Section 4.2 hereof. The $100,000.00 limitation aforesaid shall be increased
annually by an amount equal to the percentage increase in the Consumer Price
Index for All Urban Consumers (CPI-U), New York-New Jersey-Long Island
(NY-NJ-CT), All Items, unadjusted 1982-1984=100, published by the Bureau of
Labor Statistics of the United States Department of Labor (the "Index") for the
month of January in each calendar year following the Rent Commencement Date over
the Index for the month of January, 2000. Any such Alteration shall otherwise be
performed in compliance with the provisions of this Article 4.
ARTICLE 5
MAINTENANCE AND REPAIRS
Section 5.1 (A) Except as specifically set forth in Section 5.2 below,
Tenant shall, throughout the Term, maintain the Premises and the fixtures and
appurtenances located therein or exclusively serving the Premises in good
condition, and repair and replace same as necessary. In all events, Tenant shall
be responsible for all damage or injury to the Premises or any other part of the
Building and the Building Systems and the Structural Elements, respectively,
whether requiring structural or nonstructural repairs, caused by or resulting
from carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for or supplied to Tenant or any
subtenant or other occupant or arising out of the installation, use or operation
of the property or equipment of Tenant or any subtenant (except to the extent
covered by Landlord's insurance, as set forth in Section 9.6 hereof). Tenant
shall also repair all damage to the Building and the Premises caused by the
moving in and out thereof of any of Tenant's Property.
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(B) Tenant shall promptly make, at Tenant's sole cost and expense,
all repairs in and to the Premises for which Tenant is responsible, in strict
compliance with the provisions of Article 4 pertaining to Alterations made by
Tenant. If any such repairs for which Tenant is responsible affect the Building
Systems and/or the Structural Elements, Landlord shall have the right to require
that such repairs be performed by Landlord and/or Landlord's contractor(s) at
Tenant's cost and expense, which cost and expense shall be commercially
reasonable.
Section 5.2 (A) Landlord shall maintain in good working order and repair
the exterior and the Structural Elements of the Building, including the
structural portions of the Premises and all public portions of the Property and
the Building Systems serving the Premises (to the extent such Building Systems
do not exclusively serve the Premises). Tenant agrees to give prompt notice of
any repairs required to be made in the Premises for which Landlord may be
responsible hereunder and Landlord shall be obligated to make such repairs
promptly after it receives such notice from Tenant (subject to verification by
Landlord of the need for such repair).
(B) Except as otherwise expressly provided in Section 25.2, there
shall be no allowance to Tenant for diminution of rental value and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord or others making repairs, alterations, additions
or improvements in or to any portion of the Building or the Premises or in and
to the fixtures, appurtenances or equipment thereof, or any portion of the
Building Systems located therein.
(C) Except as otherwise expressly provided in Section 25.2, it is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of Rent by reason of any failure of Landlord to comply with any of the terms,
provisions, conditions or the covenants or any other Article of this Lease.
Tenant agrees that Tenant's sole remedy at law in such instance shall be by way
of an action for damages for breach of contract. The provisions of this Article
5 shall not apply in the case of fire or other casualty which are dealt with in
Article 10 hereof.
ARTICLE 6
WINDOW CLEANING
Tenant will not clean nor require, permit, suffer or allow any
window in the Premises to be cleaned from the outside in violation of any
applicable Legal Requirements of any Legal Authority having or asserting
jurisdiction over the Building and/or the Premises. Landlord shall clean the
interior and exterior surfaces of the outside windows of the Premises no less
than four (4) times per year.
ARTICLE 7
LEGAL REQUIREMENTS; FLOOR LOADS
Section 7.1 (A) At all times during the Term, Tenant, at Tenant's sole
cost and expense, shall promptly comply with all present and future laws,
orders, directives and regulations including, but not limited to, all
environmental or hazardous substance laws (collectively, the "Legal
Requirements") of all state, federal, municipal and local governments,
departments, commissions, bureaus and boards and any directives or directions of
any public officer acting under or pursuant to law (each, a "Legal Authority";
collectively, the "Legal Authorities"), and any orders, rules or regulations of
any of the New Jersey Board of Fire Underwriters or the Insurance Services
Office or any similar body (each, an "Insurance Body"; collectively, the
"Insurance Bodies") which shall impose any violation, order or duty with respect
to the Premises, arising out of Tenant's use thereof, or with respect to the
Building, if arising out of Tenant's particular manner of use or occupancy of,
or particular method of operation in, the Premises or the Building,
respectively, as the case may be (as opposed to general office use).
(B) Nothing herein shall require Tenant to make repairs or
Alterations to
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Building Systems or the Structural Elements of the Building, unless Tenant has
by its particular manner of use or occupancy of the Premises or particular
method of operation therein, violated any Legal Requirements with respect
thereto.
(C) As used in this Article 7, the phrase "Tenant's particular
manner of use or occupancy" shall include, without limitation, any repairs to,
or Alterations of, the Premises performed by or on behalf of Tenant, any breach
of a covenant, agreement, term, provision or condition of this Lease on the part
of Tenant to be observed or performed, and any cause or condition created by or
on behalf of Tenant.
(D) In all events, Tenant shall promptly deliver to Landlord true
and complete copies of all documents and correspondence submitted by Tenant to
or received by Tenant from any Legal Authority or Insurance Body with respect to
the Premises or this Lease.
Section 7.2 Tenant may contest and appeal any such Legal Requirements or
any contention or declaration by any Legal Authority that the use of the
Premises violates the Certificate of Occupancy (as more fully described in
Section 3.1), provided Tenant secures, to Landlord's reasonable satisfaction,
against all damages, interest, penalties and expenses, including, but not
limited to, attorneys' fees, and court costs, by cash deposit or by surety bond
in an amount and with a company reasonably satisfactory to Landlord, and further
provided same is done with all reasonable promptness and provided such contest
and appeal shall not subject Landlord to prosecution for a criminal offense or
constitute a default under any Superior Lease or Mortgage under which Landlord
may be obligated, or cause the Premises or any part thereof to be condemned or
vacated.
Section 7.3 Tenant shall not do or permit any act or thing to be done in
or to the Premises which is contrary to or in violation of any Legal
Requirement, or which will invalidate or be in conflict with public liability,
fire or other policies of insurance at any time carried by or for the benefit of
Landlord with respect to the Premises or the Building, or which shall or might
subject Landlord to any liability or responsibility to any person or entity for
personal injury or for property damage. Tenant shall not keep anything in the
Premises except as now or hereafter permitted by the fire department or any
Insurance Body having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
Building, and shall not use the Premises in any manner (other than general
office use) which will increase the insurance rate for the Building or any
property located therein over that in effect in the absence of Tenant's
occupancy.
Section 7.4 Tenant shall pay all costs, expenses, fines, penalties or
damages, which may be imposed upon Landlord by reason of Tenant's failure to
comply with the provisions of this Article 7 and, if by reason of such failure,
the fire insurance rate shall, at the time in question, be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Landlord which shall have been charged because of such failure by Tenant to
comply with the terms of this Article 7. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make-up" of rate for the
Building or Premises issued by any Insurance Body or other body making fire
insurance rates applicable to the Premises shall be conclusive evidence of the
facts therein stated and of the several items and charges in the fire insurance
rate then applicable to said Premises.
Section 7.5 (A) In amplification of and supplementing the Legal
Requirements with which Tenant is required to comply, and without limitation,
Tenant acknowledges the existence of federal, state and local environmental
laws, rules and regulations (collectively, the "Environmental Laws"), including,
without limitation, the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.
("ISRA") and the Spill and Compensation and Control Act N.J.S.A. 58:10-23.11 et
seq. Tenant agrees, from and after the date hereof, to act in compliance with
all such Environmental Laws. Tenant shall not perform any acts in the Premises
or the Building in violation of Environmental Laws. Tenant represents to
Landlord that Tenant's Standard Industrial Classification (SIC) Number as used
on its Federal Tax Return will not, under the applicable rules and regulations
existing as of the date hereof, subject the Premises or the Property to ISRA
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applicability. Tenant represents to Landlord and covenants that Tenant will not
change to an operation with a different SIC Number without Landlord's prior
written consent. Any such proposed change shall be sent in writing to Landlord
sixty (60) days prior to the proposed change. Landlord may deny consent if,
inter alia, the different SIC Number would subject the Premises or the Property
to ISRA applicability. Notwithstanding anything to the contrary set forth
herein, in the event that Tenant's SIC Number or the SIC Number of any subtenant
or other party holding by, through or under Tenant (including any assignee
hereof) shall subject the Premises or the Property to ISRA applicability, the
same shall not constitute a violation hereunder if the criteria of the so-called
"office exemption" established under N.J.A.C. 7:26B- 2.1(b)(2) shall be
satisfied and the entity whose SIC Number is in question certifies to Landlord
in writing and under oath that such entity satisfies the exemption criteria.
(B) Upon the occurrence of any event requiring Tenant's compliance
with ISRA, or if Landlord by reason of any act or omission or failure to act or
not act on the part of Tenant, shall be required to comply with ISRA, Tenant
shall make all necessary filings with the New Jersey Department of Environmental
Protection ("DEP") and any other relevant Legal Authority and, at its own
expense, shall cause all necessary tests and studies to be performed. Landlord
shall complete such documents and otherwise cooperate (provided such cooperation
does not subject Landlord to any fee, cost, expense or liability or require
performance by Landlord of Tenant's obligations hereunder) as may be reasonably
requested by Tenant or required by the ISRA requirements of the DEP. In the
event that the DEP or any other Legal Authority shall require a clean-up of the
Premises or the Property or other remedial action in order to comply with any
Environmental Law, or in the event of the imposition of any fine or penalty
arising out of an environmental violation affecting the Premises, then, if and
only if such cleanup or other remedial actions shall have been caused by the
activities or occurrences of Tenant, its agents, employees, invitees or
independent contractors, and expressly excluding such obligations, remedial
actions, fines and penalties actually resulting from the conduct of Landlord,
its employees, agents, licensees or independent contractors, whether before,
during or after the Term hereof, arising out of performance of Landlord's
obligations under this Lease or otherwise, Tenant shall assume responsibility,
at its sole cost and expense, for such clean-up obligations, remedial actions,
fines and penalties not expressly excluded above.
(C) Tenant hereby agrees to execute such documents and provide such
information as Landlord reasonably deems necessary and to make such applications
as Landlord reasonably requires to assure compliance with ISRA or to comply with
any Environmental Laws, rules or regulations of any relevant Legal Authority.
Tenant shall bear all costs and expenses incurred by Landlord associated with
any required ISRA compliance resulting from Tenant's use of the Premises or any
acts and/or omissions in violation of ISRA or any other Environmental Law which
Tenant, its agents, employees, invitees or independent contractors initiate,
including, without limitation, State agency fees, engineering fees, clean-up
costs, filing fees and suretyship expenses. As used in this Lease, ISRA
compliance shall include applications for determinations of nonapplicability by
the appropriate Legal Authority.
(D) Tenant agrees to indemnify and hold Landlord harmless from and
against any fines, suits, proceedings, claims and actions and any other cost,
expense or liability of any kind arising under Environmental Laws, rules or
regulations resulting from Tenant's use of the Premises or any acts and/or
omissions which Tenant, its agents, employees, invitees or independent
contractors initiate, Tenant's failure to comply with this Section 7.5 or
Tenant's failure to provide all information, make all submissions and take all
actions required by any Legal Authority. Landlord agrees to indemnify and hold
Tenant harmless from and against any fines, suits, proceedings, claims and
actions and any other cost, expense or liability of any kind arising under
Environmental Laws, rules or regulations resulting from Landlord's construction
or management of the Building or any other acts and/or omissions of Landlord.
(E) Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry
(i.e., one hundred (100) pounds per square foot live load) and which is allowed
by law. Landlord reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such installations
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shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient, in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance.
(F) Landlord shall develop the Property, construct the Building and
thereafter maintain the Property in compliance with Environmental Laws and the
"Newport Remedial Plan" (as defined in Section 36.7).
ARTICLE 8
SUBORDINATION; ATTORNMENT; MODIFICATIONS
Section 8.1 (A) This Lease is and shall be subject and subordinate to all
Superior Leases and to all Mortgages which may now or hereafter affect such
Superior Leases or the Land and/or the Building and to all renewals,
modifications, consolidations, replacements and extensions of any such Superior
Leases and Mortgages; provided, however, and on the condition that (1) a
mortgagee under a Mortgage (a "Mortgagee") shall execute and deliver to Tenant
for Tenant's signature an agreement which shall provide that, if there shall be
a foreclosure of its Mortgage, such Mortgagee will not make Tenant a party
defendant to such foreclosure, or to evict Tenant, disturb Tenant's possession
under this Lease, or terminate or disturb Tenant's leasehold estate or rights
hereunder, and will recognize Tenant as the direct tenant of such Mortgagee on
the same terms and conditions as are contained in this Lease, subject to the
provisions hereafter set forth, provided no Event of Default shall at the time
have occurred and be continuing hereunder, or (2) a lessor under a Superior
Lease (a "Lessor") shall execute and deliver to Tenant for Tenant's signature an
agreement to the effect that if its Superior Lease shall terminate or be
terminated for any reason, Lessor will not make Tenant a party defendant in any
action to terminate such Superior Lease, or to evict Tenant, disturb Tenant's
possession under this Lease, or terminate or disturb Tenant's leasehold estate
or rights hereunder, and will recognize Tenant as the direct tenant of such
Lessor on the same terms and conditions as are contained in this Lease, subject
to the provisions hereafter set forth, provided no Event of Default shall at the
time have occurred and be continuing hereunder (any such agreement, or any
agreement of similar import, from a Mortgagee or a Lessor, as the case may be,
is called a "Nondisturbance Agreement"). This clause shall be self-operative and
no further instrument of subordination shall be required by any Lessor or
Mortgagee, respectively, as the case may be. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Landlord may
request.
(B) Any Nondisturbance Agreement may be made on the condition that
and Tenant hereby agrees that neither the Mortgagee nor the Lessor, as the case
may be, nor anyone claiming by, through or under such Mortgagee or Lessor, as
the case may be, including a purchaser at a foreclosure sale, shall be:
(1) liable for any previous act or omission of Landlord
under this Lease, except to the extent that a default continues after the date
of foreclosure or purchase of the Premises (in which event such default shall be
deemed to have occurred on the date of transfer of title to the Premises); or
(2) subject to any credit, claim, counterclaim, demand,
defense or offset, not expressly provided for in this Lease and asserted with
reasonable promptness, which Tenant may have or shall have theretofore accrued
to Tenant against Landlord; or
(3) bound by any previous modification of this Lease,
not expressly provided for in this Lease, or by any previous prepayment of more
than one (1) month's Fixed Rent to Landlord (or its predecessors-in-interest),
unless such modification or prepayment shall have been expressly approved in
writing by any Lessor or any Mortgagee who shall have succeeded to the rights of
Landlord under this Lease (each a "Successor Landlord"); or
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(4) obligated to perform any alteration or improvements
of the Premises not expressly required under this Lease; or
(5) responsible for any monies owing by Landlord to the
credit of Tenant; or
(6) bound by any obligation to make any payment to
Tenant, or be subject to any credits, except for services, repairs, maintenance
and restoration provided for under this Lease to be performed after the date of
attornment; it being expressly understood, however, that any Successor Landlord
shall not be bound by any obligation to make payment to Tenant with respect to
construction performed by or on behalf of Tenant at the Premises; or
(7) required to remove any person occupying the
Premises, or any part thereof.
(C) If required by a Mortgagee or a Lessor, within seven (7) days
after notice thereof, Tenant shall join in any Nondisturbance Agreement to
indicate its concurrence with the provisions thereof and its agreement set forth
in Section 8.2 hereof to attorn to such Mortgagee or Lessor, as the case may be,
as Tenant's landlord hereunder. Tenant shall promptly so accept, execute and
deliver any Nondisturbance Agreement proposed by any such Mortgagee or Lessor
which conforms to the provisions of this Article 8 or any other agreement that
Landlord or such Mortgagee or Lessor may request in confirmation of such
subordination. Any such Nondisturbance Agreement may also contain other terms
and conditions as may otherwise be required by such Mortgagee or Lessor, as the
case may be, which do not increase Tenant's monetary obligations under this
Lease, or materially adversely affect or materially adversely diminish the
rights, or materially increase the other obligations of Tenant under this Lease.
Section 8.2 (A) If at any time prior to the expiration of the Term, any
Superior Lease shall terminate or be terminated for any reason, or any Mortgagee
comes into possession of the Land and/or the Building or the estate created by
any Superior Lease by receiver or otherwise, Tenant agrees, at the election and
upon demand of any owner of the Land and/or the Building, to attorn, from time
to time, to any such owner, Lessor or Mortgagee or any person acquiring the
interest of Landlord as a result of any such termination, or as a result of a
foreclosure of the Mortgage or the granting of a deed in lieu of foreclosure,
upon the then executory terms and conditions of this Lease, subject to the
provisions of Section 8.1 hereof, for the remainder of the Term, provided that
such owner, Lessor or Mortgagee, respectively, as the case may be, or receiver
caused to be appointed by any of the foregoing, shall then be entitled to
possession of the Premises.
(B) The provisions of this Section 8.2 shall inure to the benefit of
any such owner, Lessor or Mortgagee, and shall apply notwithstanding that, as a
matter of law, this Lease may terminate upon the termination of any Superior
Lease, and shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions. Tenant, however,
upon demand of any such owner, Lessor or Mortgagee, shall execute, at Tenant's
expense, from time to time, instruments, in recordable form in confirmation of
the foregoing provisions of this Section 8.2, satisfactory to any such owner,
Lessor or Mortgagee, acknowledging such attornment and setting forth the terms
and conditions of its tenancy. Nothing contained in this Section 8.2 shall be
construed to impair any right otherwise exercisable by any such owner, Lessor or
Mortgagee.
Section 8.3 As long as any Superior Lease or Mortgage shall exist, Tenant
shall not seek to terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have given written notice of such act or omission to
all Lessors and Mortgagees at such addresses as shall have been furnished to
Tenant and, if any such Lessor or Mortgagee, as the case may be, shall have
notified Tenant within thirty (30) days following receipt of such notice of its
intention to remedy such act or omission, until a reasonable period of time
shall
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have elapsed following the giving of such notice, during which period such
Lessors and Mortgagees shall have the right, but not the obligation, to remedy
such act or omission. This Section 8.3 shall not be applicable where Lessor or
Mortgagee is an affiliate of Landlord.
Section 8.4 If, in connection with the procurement, continuation or
renewal of any financing for which the Property or the interest of the lessee
therein under a Superior Lease represents collateral in whole or in part, an
institutional lender shall request reasonable modifications of this Lease as a
condition of such financing, Tenant will not withhold its consent thereto
provided that such modifications (A) do not increase Tenant's monetary
obligations under this Lease or (B) materially increase the other obligations of
Tenant under this Lease or (C) materially and adversely affect or materially and
adversely diminish any rights of Tenant under this Lease.
ARTICLE 9
INSURANCE; PROPERTY LOSS; DAMAGE; REIMBURSEMENT;
INDEMNITY; EXCULPATION AND NON-LIABILITY
Section 9.1 (A) Tenant shall not do or permit any act or thing to be done
upon the Premises which may subject Landlord to any liability or responsibility
for injury or damage to persons or property, or to any liability by reason of
any violation of law or of any Legal Requirement of any Legal Authority or
otherwise, but shall exercise such control over the Premises as to fully protect
Landlord against any such liability.
(B) Tenant shall indemnify and save harmless Landlord and Landlord's
members, partners, shareholders, officers, directors, employees, agents and
contractors (the "Indemnitees") from and against any and all claims of whatever
nature against Landlord and/or the Indemnitees arising from (1) any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
invitees or employees, (2) any accident, injury or damage whatsoever caused to
any person or to the property of any person and occurring during the Term in or
about the Premises (unless resulting from an act, omission or negligence of
Landlord, or its contractors, licenses, agents, servants or employees), (3) any
accident, injury or damage whatsoever occurring outside the Premises but
anywhere within or about the Property, where such accident, injury or damage
results or is claimed to have resulted from an act, omission or negligence of
Tenant, its contractors, licensees, agents, servants, invitees or employees, and
(4) any breach, violation or non-performance of any term, covenant, condition or
agreement in this Lease set forth on the part of Tenant or parties claiming by
or under Tenant to be fulfilled, kept, observed or performed. Tenant's liability
under this Lease extends to the acts and omissions of any subtenant, and any
agent, contractor, employee, invitee or licensee of any such subtenant. In case
any action or proceeding is brought against Landlord by reason of any such
claim, Tenant, upon written notice from Landlord, will, at Tenant's expense,
resist or defend such action or proceeding by counsel appointed by Tenant's
insurance carrier or counsel otherwise approved by Landlord in writing, such
approval not to be unreasonably withheld.
(C) This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, loss, cost, damage and expense
of any kind or nature incurred in or in connection with any such claim or
proceeding brought thereon and the defense thereof including, without
limitation, reasonable attorneys' fees and disbursements. Landlord, from time to
time, may submit to Tenant copies of Landlord's legal bills in connection with
the foregoing, and Tenant, upon receipt of such bills, shall promptly pay to
Landlord the amount shown thereon as additional rent; provided, however, that
where Tenant's insurance coverage is sufficient to cover the nature and amount
of the claim, Tenant shall not be obligated to reimburse Landlord for its
attorneys' fees and disbursements as aforesaid. This indemnity and hold harmless
agreement shall survive the expiration or earlier termination of this Lease.
Section 9.2 Landlord or its agents shall not be liable for any damage to
property of
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Tenant or of others entrusted to employees of the Building, nor for loss of or
damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to negligence or other misconduct of Landlord, its
contractors, licensees, agents, servants or employees.
Section 9.3 If at any time any windows of the Premises are temporarily
closed, darkened or bricked up (or permanently closed, darkened or bricked up if
due to Legal Requirement) due to repairs or other work being performed by
Landlord or pursuant to Legal Requirements, Landlord shall not be liable for any
damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
Landlord shall use commercially reasonable efforts to minimize the amount of
time that the windows of the Premises are so closed, darkened or bricked up,
subject to Legal Requirements and Unavoidable Delays.
Section 9.4 (A) Tenant shall obtain and keep in full force and effect
during the Term:
(1) a policy of commercial general liability and property
damage (1973 occurrence or successor form) insurance with broad form
liability coverage, including contractual liability coverage, covering
Tenant's obligations under Section 9.1(A), and personal injury liability
coverage, against claims for personal injury, death and/or property damage
occurring in or about the Premises and/or the Property and under which the
insurer agrees to indemnify and hold Landlord harmless from and against,
among other things, all cost, expense and/or liability arising out of or
based upon any and all claims with respect to accidents, injuries and
damages, and which policy shall also contain a provision that no act or
omission of Tenant shall affect or limit the obligation of the insurance
company to pay the amount of any loss sustained, and minimum limits of
liability under such policy including products liability and completed
operations shall be a combined single limit with respect to each
occurrence in an amount of not less than Three Million and 00/000
($3,000,000.00) Dollars for injury (or death) and damage to property (or
in any increased amount reasonably required by Landlord); it being agreed
and understood that such limit of coverage may be provided by Tenant's
commercial general liability and property damage policy in conjunction
with an umbrella or excess liability policy;
(2) insurance against loss or damage by fire and such other
risks and hazards (including, during the period of construction of any
Tenant's Property and Alterations, casualty insurance in the so-called
"Builder's Risk Completed Value Non-Reporting Form", burglary, theft and
breakage of glass within the Premises) as are insurable under the
available standard forms of "all risk" insurance policies, to Tenant's
Property and Alterations for the full replacement cost value thereof
(including an "agreed amount" endorsement); and
(3) worker's compensation and disability insurance, in such
amounts as shall be required, from time to time during the Lease term, by
Legal Requirements of any applicable Legal Authority.
(B) For purposes of this Lease, Tenant hereby agrees that Landlord,
Landlord's managing agent, if any, all Lessors and Mortgagees, respectively, as
the case may be, shall be designated as additional insureds and the
beneficiaries of the indemnification furnished by Tenant hereunder, and that
each policy of insurance shall contain a provision that no act or omission of
Tenant shall affect or limit the obligation of the insurance company to pay the
amount of any loss sustained, and shall provide that it will be non-cancelable
with respect to the additional insureds without thirty (30) days written notice
to such insureds by certified mail, return receipt requested, which notice shall
contain the policy number and the names of the insureds and certificate holders.
A certificate of each of the required policies shall be delivered to Landlord on
or prior to the Commencement Date or any earlier date of entry upon the Premises
by Tenant or anyone claiming by or under Tenant.
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(C) All insurance required to be carried by Tenant pursuant to the
terms of this Lease shall be effected under valid and enforceable policies
issued by reputable and independent insurers licensed to do business in the
State of New Jersey, and rated in Best's Insurance Guide or any successor
thereto (or if there be none, an equivalent organization having a national
reputation) as having a general policyholder rating of "A" and either (1) a
financial rating of at least "10", or (2) a policy holder surplus of at least
Fifty Million ($50,000,000.00) and 00/00 Dollars.
(D) Landlord may, at any time and from time to time during the Term,
require that the amount of the insurance to be maintained by Tenant hereunder be
increased, so that the amount thereof adequately protects Landlord's interest;
provided, however, that the landlords of comparable first class office buildings
located in the Comparable Market have similarly increased the amount of
insurance required to be obtained by tenants under leases for such properties.
(E) Landlord hereby agrees that Tenant shall have the right to
provide the insurance which is required hereunder as part of so-called "blanket
insurance policies" which insure other properties of Tenant, provided, however,
that such "blanket insurance" policies provide for an adequate reserve, in
Landlord's opinion, to cover any casualty, damage or injury at the Property or
Premises for which Tenant is required to obtain insurance coverage hereunder.
(F) Tenant shall pay all premiums and charges for all of such
policies, and if Tenant shall fail to make any payment when due or carry any
such policy, Landlord may, but shall not be obligated to, make such payment or
carry such policy, and the amount paid by Landlord, with interest thereon at the
Interest Rate set forth in Section 2I of this Lease, shall be repaid to Landlord
by Tenant on demand, and all such amounts so repayable, together with interest
at the Interest Rate, shall be considered as additional rent hereunder. Payment
by Landlord of any such premium or the carrying by Landlord of any such policy
shall not be deemed to waive or release Tenant with respect to such default.
(G) Tenant's failure to provide and keep in force the aforementioned
insurance shall be a material default hereunder, entitling Landlord to exercise
any or all of the remedies provided in this Lease in the event of Tenant's
default.
Section 9.5 Notwithstanding the limits of insurance specified Section 9.4,
Tenant agrees to indemnify Landlord and the Indemnitees against all damages,
loss or liability resulting from any of the risks referred to in this Article 9.
Such indemnification shall operate whether or not Tenant has placed and
maintained the insurance specified in Section 9.4 and whether or not such
insurance having been placed and maintained, proceeds from such insurance shall
have been received from any or all of the respective insurance companies.
Section 9.6 (A) Landlord and Tenant shall each use reasonable efforts to
procure an appropriate clause in, or endorsement to, each of its property
insurance policies (insuring the Property, in the case of Landlord, and insuring
Tenant's Property and Alterations, in the case of Tenant), pursuant to which
each insurance company waives subrogation or consents to the waiver of right of
recovery by the insured prior to any loss. The waiver of subrogation or
permission for waiver of the right of recovery in favor of Tenant shall also
extend to any permitted assignees hereof or subtenants occupying or using the
Premises in accordance with the terms of this Lease. The waiver of subrogation
or permission for waiver of the right of recovery in favor of Landlord shall
also extend to the Building's managing agent, if any, any Lessor and any
Mortgagee. If the payment of any additional premium is required for the
inclusion in the insurance policy in question of such waiver of subrogation
provisions or consent to a waiver of right of recovery, each party shall advise
the other of the amount of any such additional premium by written notice and the
other party shall pay the same or shall be deemed to have agreed that the party
obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to the obtaining of such waiver
or consent. Landlord shall, upon Tenant's request, provide Tenant with written
confirmation of the aforesaid waiver of subrogation under Landlord's insurance
policy.
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(B) If such waiver of subrogation shall be unattainable or
unenforceable, each party shall instead have included in each of its insurance
policies (a) an express agreement that such policy shall not be invalidated if
the insured waives the right of recovery against any party responsible for a
casualty covered by the policy before the casualty, or (b) any other form of
permission or release of the party. If such waiver, agreement or other form of
permission or release shall not be, or shall cease to be, obtainable from either
party's then-current insurance company, the insured party shall so notify the
other party promptly after learning thereof, and shall use its best efforts to
obtain the same from another insurance company described in Section 9.4 hereof.
Section 9.7 Landlord shall obtain and keep in full force and effect during
the Term with respect to the Building, all-risk property insurance coverage for
not less than eighty percent (80%) of the replacement cost of the Building
(excluding foundations and footings), with earthquake and flood endorsements.
Landlord will not carry insurance of any kind on Tenant's Alterations (including
Tenant's Initial Alterations) or Tenant's Property and shall not be obligated to
repair any damage to or replace Tenant's Alterations or Tenant's Property;
provided, however, that if Tenant shall fail to maintain such insurance,
Landlord shall have the right to obtain insurance on such Tenant's Alterations
and Tenant's Property and the cost thereof, with interest thereon at the
Interest Rate, shall be payable by Tenant to Landlord as additional rent on
demand. Notwithstanding the foregoing provisions of this Section 9.7, Tenant
hereby acknowledges and agrees that Landlord shall be in full compliance with
its obligations under this Section 9.7 for so long as Landlord shall then be
carrying the insurance required to be carried, and shall then be in compliance
with the insurance requirements imposed on Landlord as mortgagor under any
institutional third-party Mortgage then encumbering the Building and/or the
Land.
Section 9.8 Each party hereby releases the other (its servants, agents,
employees and invitees) with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damage or destruction with respect to property by fire or other casualty (i.e.,
in the case of Landlord, as to the Property, and, in the case of Tenant, as to
Tenant's Alterations and Tenant's Property) (including rental value or business
interruption, as the case may be) occurring during the Term. Each party shall
cooperate with the other party in connection with the collection of any
insurance monies that may be due in the event of loss and each party shall
execute and deliver to the other party such proofs of loss and other instruments
which may be required to recover any such insurance monies.
Section 9.9 (A) No recourse shall be had on any of Landlord's obligations
hereunder against any incorporator, subscriber of capital stock, stockholder,
officer or director, past, present or future, of any corporation, or against any
general or limited partner of any partnership or joint venture, or against any
member of any limited liability company which shall be Landlord hereunder, or
other holders of any equity interest in such corporation, partnership, joint
venture or limited liability company, respectively, or the shareholders,
directors or officers of such partners, or the partners comprising such
partners, or of any successor of any such corporation, partnership, joint
venture, or limited liability company, respectively, or against any principal of
any of the foregoing, disclosed or undisclosed, or any affiliate of any party
which shall be Landlord or be included in the term "Landlord", whether directly
or through Landlord or through any receiver, assignee, trustee in bankruptcy or
through any other person, firm or corporation, respectively, as the case may be
(collectively, the "Parties") whether by virtue or any Legal Requirement or by
enforcement of any assessment or penalty or otherwise; it being expressly
understood and agreed that Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties; provided, however, that nothing herein contained shall be intended
to nor shall same impair the rights of Tenant under the LeFrak Guaranty. The
liability of Landlord for Landlord's obligations under this Lease shall not
exceed and shall be limited to Landlord's interest in the Property and any
proceeds or awards from casualty or condemnation, and Tenant shall not look to
other property or assets of Landlord or of any of the Parties in seeking either
to enforce Landlord's obligations under this Lease or to satisfy a judgment for
Landlord's failure to perform such obligations.
(B) Neither Landlord (except as specifically set forth in this
Lease), nor any of
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the Parties, nor any Lessor, nor any Mortgagee, nor any partner, director,
officer, shareholder, principal, agent, servant or employee of such Lessor or
Mortgagee (in any case, whether disclosed or undisclosed), shall be liable to
Tenant for any loss, injury or damage to Tenant or to any other person, or to
its or their property, irrespective of such injury, damage or loss, nor shall
any of the aforesaid entities or Parties be liable for any damage to property of
Tenant or of others entrusted Landlord nor for loss of or damage to any such
property by theft or negligence of Landlord, its agents, servants or employees,
or any of the Parties in the operation or maintenance of the Premises or the
Building, without contributory negligence of the party of Tenant or any of its
subtenants or licensees or its or their respective agents, contractors or
employees.
(C) Neither Landlord nor any of the Parties, nor any Lessor nor any
Mortgagee, nor any partner, director, officer, agent, servant or employee of
Landlord or any such Lessor or Mortgagee shall be liable for any such damage
caused by other tenants or persons in, upon or about the Building, or caused by
operations in construction of any private, public or quasi-public work; or even
if negligent, for consequential damages arising out of any loss of use of the
Premises or any equipment or facilities therein by Tenant or any person claiming
by, through or under Tenant.
ARTICLE 10
DESTRUCTION, FIRE AND OTHER CASUALTY
Section 10.1 (A) If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to Landlord
and this Lease shall continue in full force and effect except as hereinafter set
forth.
(B) If the Premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages to the Landlord's Work therein
shall be repaired by and at the expense of Landlord to substantially the
condition prior to the damage and until such repairs which are required to be
performed by Landlord shall be substantially completed, the Fixed Rent shall be
apportioned from the day following the casualty according to the part of the
Premises which is usable. Tenant's liability for payment of Fixed Rent shall
resume fifteen (15) days after written notice from Landlord that the repairs to
the Premises constituting the Landlord's Work have been substantially completed.
Tenant acknowledges that Landlord will not carry insurance on any of Tenant's
Property or Alterations (including Tenant's Initial Alterations) and agrees that
Landlord will not be obligated to repair any damage thereto or replace the same.
(C) If the Premises are totally damaged or rendered wholly unusable
by fire or other casualty, then the Fixed Rent shall be proportionately paid up
to the time of the casualty and thenceforth shall cease until the date when the
Premises shall have been repaired and restored by Landlord, subject to
Landlord's right to elect not to restore the same as hereinafter provided in
Sections 10.1(D) and 10.4(A) below and subject to Tenant's right to terminate
this Lease as provided in Sections 10.1(E) and 10.4(A) below.
(D) If the Premises are totally damaged or rendered wholly unusable,
or (whether or not the Premises are damaged in whole or in part) if the Building
shall be so damaged that Landlord shall decide to demolish it or to rebuild it,
then, in any of such events, Landlord may elect to terminate this Lease by
written notice to Tenant given within ninety (90) days after such fire or
casualty specifying the date for the expiration of this Lease, which date shall
not be more than sixty (60) days after the giving of such notice. Upon the date
specified in such notice, the Term shall expire as fully and completely as if
such date were the date set forth above for the Expiration Date, and Tenant
shall forthwith quit, surrender and vacate the Premises without prejudice,
subject, however, to Landlord's rights and remedies against Tenant under this
Lease and its provisions in effect prior to such termination, and any Rent owing
shall be paid up to such date and any payments of Rent made by Tenant which were
on account of any period subsequent to such date shall be returned to Tenant.
(E) (1) In the event that Landlord elects not to terminate this
Lease, as provided
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in Section 10.1(D) above, if the Premises are totally damaged or rendered wholly
unusable, or (whether or not the Premises are damaged in whole or in part) if
the Building shall be so damaged that the Premises are rendered substantially
unusable, Landlord shall, after the occurrence of such damage or destruction,
advise Tenant in writing, of Landlord's estimate of the amount of time which
will be required to repair and/or restore the Landlord's Work in the Premises
(the "Landlord's Repair Notice").
(2) If Landlord, in the Landlord's Repair Notice, advises
Tenant that Landlord shall require more than one (1) year from the date of the
casualty to repair and restore the Landlord's Work in the Premises, Tenant shall
have the right to terminate this Lease by written notice to Landlord given
within thirty (30) days after receipt of the Landlord's Repair Notice (TIME
BEING OF THE ESSENCE as to such thirty (30) day period).
(3) If Tenant elects not to terminate this Lease (or fails to
exercise its right to terminate this Lease) as provided in subsection (2) above,
or if Landlord advises Tenant, in the Landlord's Repair Notice, that Landlord
estimates that Landlord will repair and restore the Landlord's Work in the
Premises within one (1) year from the casualty (the "Restoration Period"), this
Lease shall remain in full force and effect and Landlord shall, promptly after
receipt of any required permit(s) from the Buildings Department or any other
applicable Legal Authority for the aforesaid restoration and repair work,
commence or cause the commencement of the repair and restoration of the
Landlord's Work in the Premises and diligently perform the same to substantial
completion within the Restoration Period, which Restoration Period shall be
subject to extension for an additional period of time not to exceed sixty (60)
days for Unavoidable Delays and/or adjustment of insurance claims.
(4) If Landlord fails to substantially complete the repair or
restoration, or cause the substantial completion of the repair or restoration of
the Landlord's Work in the Premises within the Restoration Period, and any
extension thereof as set forth above, then Tenant shall have the one-time right,
within thirty (30) days after the expiration of the Restoration Period (TIME
BEING DEEMED OF THE ESSENCE), to terminate this Lease by a written notice given
to Landlord, such termination to be effective as of a date specified in such
notice, which termination date shall be no earlier than thirty (30) days nor
later than forty-five (45) days from the date of such termination notice, and
unless Landlord shall have substantially completed the repair and/or restoration
of the Landlord's Work in the Premises by the termination date specified in such
Tenant's notice, this Lease shall terminate and become null and void, and the
Term shall expire as fully and completely as if such date were the date set
forth above for the Expiration Date, and Tenant shall forthwith quit, surrender
and vacate the Premises without prejudice, subject, however, to Landlord's
rights and remedies against Tenant under this Lease and its provisions in effect
prior to such termination, and any Rent owing (which has not been abated in
accordance with subsections (B) and (C) above) shall be paid up to such date and
any payments of Rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant.
(F) Unless Landlord shall serve a termination notice as provided for
in Section 10.1(D) above or Section 10.4(A) below or Tenant shall serve a
termination notice as provided for in Section 10.1(E) above or Section 10.4(A)
below, Landlord shall make the repairs and restorations under the conditions as
provided in Section 10.1(A) hereof, with all reasonable expedition subject to
delays resulting from or caused by (1) "Unavoidable Delays" (as defined in
Article 25), or (2) adjustment of insurance claims.
Section 10.2 After the occurrence of any such casualty, Tenant shall
cooperate with Landlord's repairs and restoration by removing from the Premises
as promptly as reasonably possible, all of Tenant's salvageable inventory and
Tenant's Property.
Section 10.3 Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for
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recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, Landlord and Tenant each hereby releases and waives all right
of recovery against the other or any one claiming through or under each of them
by law, by way of subrogation or otherwise. The foregoing release and waiver
shall be in force only if both releasors' insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance, and
also provided that such a policy can be obtained without additional premiums.
Section 10.4 (A) Notwithstanding the foregoing, if the Premises shall be
"substantially" damaged during the last three (3) years of the Term (inclusive
of any then-exercised Renewal Term), either Landlord or Tenant may elect by
notice, given within thirty (30) days after the occurrence of such damage, to
terminate this Lease and if either party makes such election, the Term shall
expire upon the thirtieth (30th) day after notice of such election is given by
such party and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 1 hereof. As used in this
Section 10.4, "substantially" shall mean more than fifty percent (50%) of the
then Premises.
(B) Except as expressly set forth in this Section 10.4, Tenant shall
have no other options to cancel this Lease under this Article 10.
Section 10.5 This Article 10 constitutes an express agreement and
stipulation governing any case of damage or destruction of the Premises or the
Building by fire or other casualty, and the provisions of N.J.S.A.. 46:8-6 and 7
which provide for such contingency in the absence of an express agreement or
stipulation, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case. Tenant hereby waives the
provisions of any present or future statutes or law which provide additional
rights and remedies, Tenant hereby agreeing the provisions of this Article 10
are in lieu thereof and shall govern and control to the maximum extent legally
permissible.
ARTICLE 11
EMINENT DOMAIN
Section 11.1 (A) If the whole of the Property or the Premises shall be
acquired or condemned for any public or quasi-public use or purpose, this Lease
and the Term shall end as of the date of the vesting of title as to any "Taking"
(as hereinafter defined) with the same effect as if said date were the Fixed
Expiration Date. Any acquisition or condemnation of all or a portion of the
Property for any public or quasi-public use or purpose, as described in this
Article 11, is called a "Taking" or is deemed "Taken".
(B) If only a part of the Property and not the entire Premises shall
be Taken then: (1) except as hereinafter provided in this Section 11.1, this
Lease and the Term shall continue in force and effect, but, if a part of the
Premises is included in the part of the Property so Taken, from and after the
date of the vesting of title as to such Taking, the Fixed Rent, Tenant's Tax
Share and the Tenant's Operating Share shall be reduced in the proportion which
the area of the part of the Premises so Taken bears to the total area of the
Premises immediately prior to such Taking; (2) whether or not the Premises shall
be affected thereby, if a material portion of the Property shall be so Taken, as
determined by Landlord in its sole discretion, Landlord, at Landlord's option,
may give to Tenant, within sixty (60) days next following the date upon which
Landlord shall have received notice of vesting of title as to such Taking, a
thirty (30) days' notice of termination of this Lease, and (3) if the part of
the Property so Taken shall contain more than thirty-five percent (35%) of the
total rentable area of the Premises immediately prior to such Taking, or if, by
reason of such Taking, Tenant no longer has reasonable means of access to the
Premises, Tenant, at Tenant's option, may give to Landlord, within sixty (60)
days next following the date upon which Tenant shall have received notice of
vesting of title of such Taking, a thirty (30) days' notice of termination of
this Lease. If any such thirty (30) days' notice of termination is given by
Landlord or Tenant, this Lease and the Term shall come to an end and expire upon
the expiration of said thirty (30) days with the same effect as if the date of
expiration
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of said thirty (30) days were the Fixed Expiration Date.
(C) If a part of the Premises shall be so Taken and this Lease and
the Term shall not be terminated pursuant to the foregoing provisions of this
Section 11.1, Landlord, at Landlord's expense, shall restore that part of the
Premises not so Taken to a self-contained rental unit exclusive of Tenant's
Property and Alterations.
(D) Upon the termination of this Lease and the Term pursuant to the
provisions of this Section 11.1, the Fixed Rent and Additional Charges shall be
apportioned and any prepaid portion of Fixed Rent and Additional Charges for any
period after such date shall be refunded by Landlord to Tenant.
Section 11.2 In the event of any Taking of all or any part of the
Property, Landlord shall be entitled to receive the entire award for any such
Taking, Tenant shall have no claim against Landlord or the condemning authority
for the value of any unexpired portion of the Term and Tenant hereby expressly
assigns to Landlord all of its right in and to any such award. Nothing contained
in this Section 11.2 shall be deemed to prevent Tenant from making a separate
claim in any condemnation proceedings for the then value of any Tenant's
Property included in such Taking, and for any moving expenses, provided same
does not reduce or affect Landlord's award in any way.
Section 11.3 If the whole or any part of the Premises shall be temporarily
Taken during the Term for any public or quasi-public use or purpose this Lease
shall be and remain unaffected by such temporary Taking and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such temporary Taking and shall continue to pay
in full the Fixed Rent and Additional Rent when due. Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award for such
Taking which represents compensation for the use and occupancy of the Premises
and, if so awarded, for the Taking of Tenant's Property and for moving expenses.
If the period of temporary Taking shall extend beyond the Fixed Expiration Date,
that part of the award which represents compensation for the use of occupancy of
the Premises, or a part thereof, shall be divided between Landlord and Tenant so
that Tenant shall receive so much thereof as represents the period prior to and
including the Fixed Expiration Date and Landlord shall receive so much thereof
as represents the period subsequent to the Fixed Expiration Date. All monies
received by Tenant as, or as part of, an award for a temporary Taking for a
period beyond the date to which the Fixed Rent and Additional Rent hereunder
have been paid by Tenant shall be received, held and applied by Tenant as a
trust fund for payment of the Fixed Rent and Additional Rent hereunder.
ARTICLE 12
ASSIGNMENT; SUBLETTING; MORTGAGE, ETC.
Section 12.1 (A) Except as otherwise expressly set forth in this Article
12, Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns expressly covenants that it shall
not, without the prior written consent of Landlord in each instance, enter into
any license or concession agreement, sublet or otherwise suffer or permit the
Premises or any part thereof to be used by others, mortgage, hypothecate,
transfer, assign or otherwise encumber this Lease or Tenant's interest herein
and in and to the Premises, or any part thereof, except as is otherwise
expressly set forth below in this Article 12.
(B) In the event Landlord's written consent is given to an
assignment or subletting, Tenant and any Guarantor shall nevertheless remain
liable for the performance of all covenants and conditions of this Lease. In the
case of an assignment, such liability shall be joint and several with the
assignee. The consent by Landlord to an assignment or subletting shall not in
any way be construed to relieve Tenant from obtaining the express written
consent of Landlord as to any further assignment or subletting.
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(C) Any attempted license, concession, subletting, mortgage,
subletting, hypothecation, transfer or assignment as aforesaid, without the
prior written consent of Landlord, as and where required in this Article 12,
shall constitute a material default hereunder, entitling Landlord to exercise
any or all of the remedies provided in this Lease upon the occurrence of an
Event of Default.
(D) Tenant shall reimburse Landlord on demand for any out-of-pocket
costs that may be incurred by Landlord in connection with any proposed
assignment of Tenant's interest in this Lease or any proposed subletting of the
Premises or any part thereof, including, without limitation, reasonable
attorneys' fees and disbursements and the costs of making investigations as to
the acceptability of the proposed subtenant or the proposed assignee which costs
shall not exceed $5,000.00 in each instance and shall be reimbursed to Landlord
irrespective of whether or not Landlord's consent is granted (as and where
required in this Article 12) and irrespective of whether or not such transaction
is consummated. The $5,000.00 limitation aforesaid shall be increased annually
by an amount equal to the percentage increase in the Index for the month of
January in each calendar year following the Rent Commencement Date over the
Index for the month of January, 2000. The foregoing provisions of this Section
12.1(D) shall not apply to any assignment or subletting to a Permitted Tenant.
Section 12.2 If this Lease is assigned, or if the Premises or any part
thereof is sublet or occupied by anybody other than Tenant, unless otherwise
permitted hereunder or unless Landlord shall have granted its consent thereto,
as hereinafter provided, such assignment or occupancy shall be void and of no
force and effect against Landlord; provided, however, that Landlord may collect
rent from the assignee, under-tenant or occupant as a fee for its use and
occupancy, and apply the net amount collected to the Rent herein reserved, but
no such assignment, underletting, occupancy or collection shall be deemed a
waiver of the covenant, or the acceptance of the assignee, under-tenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of the terms, conditions, provisions and covenants on the part of Tenant
herein contained, and Tenant and any Guarantor shall remain liable for the due
observance and performance of all of Tenant's duties, obligations and
responsibilities under this Lease.
Section 12.3 Notwithstanding the provisions of Section 12.1 hereof,
Landlord shall not unreasonably withhold its consent to any subletting of all or
part of the Premises or any assignment of this Lease, provided that Tenant
complies with the requirements of Section 12.5 hereof.
Section 12.4 (A) In the event Tenant desires to sublease any of the
Premises for all or substantially all of the remaining term of this Lease or
assign this Lease pursuant to this Article 12 (other than a subletting or
assignment to a Permitted Tenant), Tenant shall submit to Landlord a statement
(the "Tenant's Assignment/Subletting Notice") containing the principal terms and
conditions of the desired subletting or assignment including, without
limitation, the proposed commencement and expiration dates of the term of the
desired sublease or the effective date of any desired assignment and, with
respect to any sublet, a sketch of the space desired to be sublet. For purposes
of this Section 12.4(A), "substantially all of the remaining term of this Lease"
shall mean ninety percent (90%) or more of the then-remaining Term of this
Lease.
(B) Tenant's Assignment/Subletting Notice shall be deemed an offer
from Tenant to Landlord whereby Landlord may, at its option (the "Landlord's
Option"), (1) terminate this Lease with respect to the portion of the Premises
desired to be sublet by Tenant (if the desired transaction is a sublease of less
than substantially all of the Premises for all or substantially all of the
remaining term of this Lease) or (2) terminate this Lease in its entirety (if
the desired transaction is an assignment of this Lease or a sublease of all or
substantially all of the Premises for all or substantially all of the remaining
term of this Lease). Landlord's Option shall be exercised, if at all, by notice
to Tenant, given at any time within thirty (30) days after Tenant has given the
Tenant's Assignment/Subletting Notice to Landlord (the "Landlord's Response
Period"), TIME BEING OF THE ESSENCE, and during the Landlord's Response Period
Tenant shall not assign this Lease nor sublet any such space to any person or
entity. If Landlord does not respond on or before the expiration of Landlord's
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Response Period, Landlord shall be deemed to have waived its right of recapture.
For purposes of this Section 12.4(B), "substantially all of the Premises" shall
mean ninety percent (90%) or more of the rentable square feet of the then-
Premises.
(C) If Landlord exercises its Landlord's Option to terminate this
Lease with respect to the portion of the Premises desired to be sublet by
Tenant, in the case where Tenant desires to sublet less than substantially all
of the Premises for all or substantially of the remaining term of this Lease
(such portion of the Premises being hereinafter referred to as the "Recaptured
Space"), then (1) this Lease shall end and expire with respect to the Recaptured
Space and the Guaranty of Lease shall be terminated with respect to the
Recaptured Space on the date on which the desired sublease was to commence, (2)
Tenant shall surrender the Recaptured Space to Landlord on or prior to the date
on which the desired sublease was to commence, in the same manner and condition
as is required by this Lease, as if such date were the Fixed Expiration Date of
this Lease, (3) from and after such date any Fixed Rent and additional rent paid
to such date, shall be apportioned and adjusted if required, and Tenant's
prospective Rental obligations hereunder which are based upon square footage
(including, without limitation, Fixed Rent, Tenant's Tax Share and Tenant's
Operating Share) shall be proportionately reduced, (4) from and after such date,
the number of Parking Spaces then-being made available to Tenant pursuant to
Article 15 hereof shall be proportionally reduced, and (5) Landlord, at Tenant's
expense, may and, if required by any Legal Requirements, shall: (i) make such
alterations as may be required or deemed necessary by Landlord to physically
separate the Recaptured Space from the balance of the Premises; (ii) make any
alterations and installations in the Recaptured Space, required, in Landlord's
judgment, to make the Recaptured Space a self-contained rental unit with access
through corridors to the Building's elevators and core toilets serving the
Recaptured Space and the Premises, respectively, as the case may be, and if the
Premises shall contain any core toilets or any corridors (including any
corridors proposed to be constructed by Landlord pursuant to this paragraph,
providing access from the Recaptured Space to such core area(s)), Landlord and
any tenant or other occupant of the Recaptured Space shall have the right to use
such toilets and corridors in common with Tenant and any other permitted
occupant(s) of the Premises, respectively, as the case may be; (iii) install
signs and directional indicators in or about such corridors indicating the name
and location of such tenant or other occupant(s) of the Recaptured Space and the
Premises, respectively, as the case may be; and (iv) comply with any Legal
Requirements of any Legal Authority and insurance requirements of any Insurance
Body relating to the alterations and installations described herein.
(D) If Landlord exercises its Landlord's Option to terminate this
Lease in its entirety in the case where Tenant desires to either assign this
Lease or sublet all or substantially all of the Premises for all or
substantially all of the remaining term of this Lease, then (1) this Lease shall
end and expire with respect to the entire Premises on the date on which the
desired assignment was to occur or the desired sublease was to commence, as the
case may be, (2) Tenant shall surrender the entire Premises to Landlord on or
prior to the date on which the desired assignment was to occur or the desired
sublease was to commence, as the case may be, in the same manner and condition
as is required by this Lease, as if such date were the Fixed Expiration Date of
this Lease, and (3) from and after such date any Fixed Rent and additional rent
paid to such date, shall be apportioned and adjusted if required.
(E) If Landlord exercises its Landlord's Option to terminate this
Lease, either in whole or in part as provided above, then Landlord shall
recapture a share of the "Parking Spaces" (as defined in Section 15.1)
proportionate to the Recaptured Space. Similarly, if Tenant shall sublet all or
a portion of the Premises or assign this Lease pursuant to this Article 12, then
Tenant may sublet a proportionate share of the Parking Spaces to such subtenant
or assign the Parking Spaces to such assignee, as the case may be, subject to
the provisions of Section 15.2 of the Lease.
Section 12.5 (A) In the event Landlord does not exercise a Landlord's
Option provided to it pursuant to the provisions of Section 12.4, or in the
event there is no applicable Landlord's Option with respect to a proposed
assignment or subletting by Tenant, and provided that no Event of Default shall
have theretofore occurred and be continuing under this Lease,
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Landlord's consent (which must be in writing and form reasonably satisfactory to
Landlord) to a proposed assignment of this Lease or sublease of all or part of
the Premises requested by Tenant shall not be unreasonably withheld provided
that:
(1) if Landlord's Option was applicable, and Landlord waived
(or is deemed to have waived) the Landlord's Option, Tenant's request for
Landlord's consent shall have been requested within nine (9) months after
such waiver (or such deemed waiver) by Landlord of the Landlord's Option;
(2) no Event of Default shall have occurred with respect to
any of Tenant's obligations under this Lease and shall be continuing,
either at the time Landlord's consent to such subletting or assignment is
requested or at the commencement of the term of any proposed sublease or
on the effective date of any such assignment;
(3) a subletting is for a term of at least two (2) years;
(unless the unexpired Term of this Lease shall be less than two (2) years,
in which event the subletting shall be for a term equal to such unexpired
portion of the Term, less one (1) day);
(4) a proposed subtenant or assignee has a financial standing
(taking into consideration the obligations of the proposed subtenant under
the sublease or assignee of the Lease, as the case may be) reasonably
satisfactory to Landlord, and each is of a character and engaged in a
business in keeping with the standards in such respects of the other
tenancies in the Building;
(5) the Premises have not, without Landlord's prior consent,
been listed or otherwise has not been listed or otherwise publicly
advertised for subletting at a rental rate less than the prevailing rental
rate set by Landlord for comparable space in the Building or if there is
no comparable space, the prevailing rental rate reasonably determined by
Landlord (the "Prevailing Rate")(provided that nothing contained in this
subsection (5) shall be deemed to prohibit Tenant from negotiating and
consummating a sublease at a lesser rental rate);
(6) (a) the proposed subtenant or assignee (X) is not a tenant
of any space in the Building or in the building presently known as
"Newport Office Center I" (a/k/a Newport Financial Center at 111 Pavonia
Avenue) or the building to be known as "Newport Office Center IV" to be
constructed on Washington Boulevard or any other buildings to be built by
Landlord or any Landlord Related Entity upon the land shown on Exhibit A-1
as the "developer's sites" for so long as such buildings shall be owned by
Landlord or any Landlord Related Entity (collectively, the "Other
Buildings") and no comparable space exists in the Building or the Other
Buildings of similar size and configuration for a comparable length of
term, and (Y) is not a person with whom (i) Landlord is then negotiating
or discussing to lease comparable space in the Building of similar size
and configuration for a comparable length of term, or (ii) Landlord or any
Landlord Related Entity is then negotiating or discussing to lease
comparable space in any Other Building of similar size and configuration
for a comparable length of term, respectively, at the time of receipt of
the Tenant's Assignment/Subletting Notice;
(b) As used in this Lease: "Landlord Related Entity"
shall mean the Landlord, LeFrak Organization, Inc., or any "Affiliate"
thereof; "Affiliate" shall mean (i) any member or combination of members
of the "LeFrak Family" (as hereinafter defined), (ii) any corporation,
partnership, limited liability company or other entity controlled,
directly or indirectly, by any combination of members of the LeFrak
Family, or (iii) a "LeFrak REIT"; "LeFrak Family" shall mean Samuel J.
LeFrak, Richard S. LeFrak, their respective spouses, any descendants of
the foregoing and the spouses of such descendants, any trusts for the
benefit of any of the foregoing parties; a "LeFrak REIT" shall mean an
entity operating under the Internal Revenue Code as a real estate
investment trust (1) which is formed by the LeFrak Family, (2) the board
of directors or board of trustees shall, for at least two years after the
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formation thereof, contain members of the LeFrak Family, and (3) the
largest non-institutional shareholders of which after any initial public
offering of stock thereof shall be members of the LeFrak Family; and
"control" shall mean the ownership, directly or indirectly, of voting
capital stock or other beneficial ownership interests in excess of fifty
percent (50%) and the possession of power to direct or cause the direction
of the management and policy of such corporation or other entity, whether
through the ownership of voting securities, by statute, according to the
provisions of a contract, or otherwise;
(7) the type of business to be conducted or the proposed use
of the Premises by the proposed subtenant or assignee, respectively shall
not (a) violate any provision or restrictions herein relating to the use
or occupancy of the Premises (but it is hereby agreed that the use of the
Premises for the Permitted Use is acceptable); (b) require any
alterations, installations, improvements, additions or other physical
changes to be performed in or made to any portion of the Property other
than the Premises; (c) impose an extra burden upon the Structural
Elements, Building Systems or any Building services; or (d) violate any
provision or restrictions in any other lease for space in the Building or
in any Superior Lease or Mortgage which has theretofore been disclosed to
Tenant in writing (but it is hereby agreed that the use of the Premises
for the Permitted Use is acceptable);
(8) the assignee, in its agreement of assignment and
assumption, agrees to assume all of the obligations of Tenant under this
Lease from and after the date of the assignment;
(9) the proposed subtenant or assignee is not entitled,
directly or indirectly, to diplomatic or sovereign immunity, and/or is
subject to the service of process in, and the jurisdiction of the courts
of, New Jersey; and
(10) upon conclusion of the subletting transaction in
question, there shall be no more than two (2) users or occupants of each
floor of the Premises (in addition to Tenant).
(11) the agreement of sublease expressly provides (a) the
subletting is expressly subject to all of the terms, covenants, conditions
and obligations on Tenant's part to be observed and performed under this
Lease, (b) the sublease may not be modified, amended or altered as to
financial terms thereof (including, without limitation, the term of the
sublease) and may not be materially modified, amended or altered as to any
other terms thereof without the prior written consent of Landlord, which
consent may be granted or withheld in Landlord's sole reasonable
discretion, or assigned, encumbered or otherwise transferred, (c) the
sublease may not be assigned and the subleased premises may not be further
sublet by the subtenant in whole or in part, or any part thereof suffered
or permitted by the subtenant to be used or occupied by others, without
the prior written consent of Landlord in each instance which consent may
be granted or withheld in Landlord's sole discretion, and that (d) in the
event of termination, re-entry or dispossess of Tenant by Landlord under
this Lease, Landlord may, at its option, take over all of the right, title
and interest of Tenant, as sublessor under such sublease, and the
subtenant, at Landlord's option, shall attorn to Landlord pursuant to the
then executory provisions of such sublease, except that Landlord shall not
be:
(i) liable for any act or omission of Tenant under such
sublease; or
(ii) subject to any defense or offset which such subtenant may
have against Tenant; or
(iii) bound by any previous payment which such subtenant may
have made to Tenant of more than thirty (30) days in advance of the
date upon which such payment was due, unless previously approved by
Landlord; or
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(iv) bound by any obligation to make any payment to or on
behalf of such subtenant; or
(v) bound by any obligation to perform any work or to make
improvements to the sublet premises; or
(vi) bound by any amendment or modification of such sublease
made without its consent; or
(vii) bound to return such subtenant's security deposit, if
any, until such deposit has come into its actual possession and such
subtenant would be entitled to such security deposit pursuant to the
terms of such sublease.
Landlord may withdraw any consent it may grant if, prior to the effective date
of such proposed assignment or the commencement date of such proposed
subletting, as the case may be, any of the foregoing items or conditions are not
met or satisfied.
(B) In the event that Landlord consents to any assignment or
subletting pursuant to this Article 12 and Tenant fails to execute and deliver
the assignment or sublease document which Landlord shall have theretofore
approved, within nine (9) months after the giving of Landlord's consent and
Landlord's approval of said document (or if Section 12.5(A)(1) is applicable to
the proposed transaction, nine (9) months after Landlord's waiver or deemed
waiver of the Landlord's Option), then Tenant shall again comply with all of the
requirements of this Article 12 before assigning its interest in this Lease or
subletting the Premises, respectively, as the case may be.
(C) In the event that Tenant shall sublease less than all of the
Premises, Tenant shall perform or cause to be performed, at Tenant's sole cost
and expense, any necessary demolition work regarding the separation of the
subleased premises from the balance of the Premises and/or the construction of
any demising walls between the subleased premises and the remaining Premises,
including any necessary demising walls to create common Building hallways,
corridors or public elevator waiting areas on any divided floor, to be performed
in accordance with the terms and conditions of this Lease with respect to the
making of Alterations to the Premises.
Section 12.6 If there is a dispute between Landlord and Tenant as to the
reasonableness of Landlord's refusal to consent to any assignment or subletting,
such dispute shall be determined by arbitration in accordance with the
provisions of Article 34. Any such determination shall be final and binding upon
the parties, whether or not a judgment shall be entered in any court. If the
determination of any such arbitration proceeding shall be adverse to Landlord,
Landlord shall not be liable to Tenant for a breach of Landlord's covenant not
to unreasonably withhold such consent, and Tenant's sole remedy in such event
shall be to enter into the proposed assignment or subletting.
Section 12.7 If Tenant obtains Landlord's consent to the assignment of
this Lease or the subletting of the Premises, then, within ten (10) days of the
execution thereof, Tenant shall deliver to Landlord (A) in the case of an
assignment (1) a duplicate original instrument of assignment in form and
substance theretofore approved by Landlord and meeting the requirements of
Section 12.5, duly executed by Tenant, and (2) an instrument in form and
substance theretofore approved by Landlord, duly executed by the assignee, in
which such assignee assumes the observance and performance of, and agrees to be
bound by, all of the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed, and (B) in the case of a subletting, an
executed duplicate original of the sublease in form and substance theretofore
approved by Landlord, and meeting the requirements of Section 12.5.
Section 12.8 For purposes of this Article 12, the term "assignment" shall
be deemed to include, but shall not be limited to the following, whether
occurring at any one time or over a period of time through a series of
transfers: (A) the sale or transfer of all or substantially all of
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the assets of, or the sale, assignment or transfer of any issued or outstanding
stock which results in a change in the "control" (as such term is hereinafter
defined) of any corporation or other business entity which is Tenant under this
Lease, or is Guarantor under any Guaranty of this Lease (as such terms are
defined in Article 40), as the case may be, or is a controlling general partner
of any partnership or joint venturer of any joint venture which directly or
indirectly is Tenant under this Lease or Guarantor under any Guaranty of this
Lease, as the case may be; (B) the issuance of any additional stock, if the
issuance of such additional stock will result in a change of the controlling
stock ownership of such corporation as held by the shareholders thereof when
such corporation became Tenant under this Lease or when such corporation became
Guarantor under any Guaranty of this Lease, as the case may be; and (C) the
sale, assignment or transfer of a controlling general partner's, joint
venturer's or member's respective interest in the partnership, joint venture or
limited liability company, respectively, as the case may be, which is Tenant
under this Lease or Guarantor under any Guaranty of this Lease, as the case may
be, or in the distributions of profits and losses of such partnership, joint
venture or limited liability company, which results in a change of control of
such partnership, joint venture or limited liability company, respectively, as
the case may be. The transfer of shares or issuance of additional stock of
Tenant or of any Guarantor of this Lease for purposes of this Section 12.8 shall
not include the sale of shares by persons other than those deemed "insiders"
within the meaning of the Securities Exchange Act of 1934, as amended, which
sale is effected through the "over-the-counter market" or through any nationally
recognized stock exchange.
Section 12.9 (A) Notwithstanding anything to the contrary contained in
Section 12.8, the provisions of this Article (including Sections 12.4, 12.5,
12.10 and 12.11 hereof) shall not apply to (1) transactions with a corporation
or other business entity into or with which Tenant named herein or Guarantor
named in any Guaranty of this Lease, as the case may be, is merged or
consolidated or to transactions with a corporation, other business entity, or
partnership to which substantially all of Tenant's or such Guarantor's assets,
as the case may be, are transferred, or (2) provided that UNITED STATES TRUST
COMPANY OF NEW YORK remains liable under the Lease or the Guaranty, an
assignment of Tenant's interest, as tenant, in and to this Lease to a "Related
Entity" (as such term is hereinafter defined), or (3) a sublease of all or a
portion of the Premises to a Related Entity; provided, however, that in any of
such events: (i) in the case of any transaction described in "(1)" above, the
successor to said Tenant or to such Guarantor, as the case may be, is a
reputable entity of good character and, as applicable, the successor to said
Tenant (if the Guaranty is no longer in effect as a result of the assignment of
this Lease to Guarantor) or the successor to such Guarantor has a tangible net
worth following such transaction, computed in accordance with GAAP, at least
equal to the tangible net worth of the Guarantor named in the Guaranty of this
Lease, UNITED STATES TRUST COMPANY OF NEW YORK, on the date of this Lease (the
"Net Worth Test"); (ii) in the case of any transaction described in "(1)" or
"(2)" above, a duplicate original instrument of assignment in form and substance
satisfactory to Landlord duly executed by Tenant or such Guarantor, as the case
may be, shall have been delivered to Landlord at least twenty (20) days prior to
the effective date of any such transaction; (iii) in the case of any transaction
described in "(1)" or "(2)" above, an instrument in form and substance
satisfactory to Landlord, duly executed by the assignee of the Lease or of the
Guaranty, as the case may be, in which such assignee assumes (as of the
Commencement Date) observance and performance of, and agrees to be personally
bound by, all of the terms, covenants and conditions of this Lease on Tenant's
part to be performed and observed (or, if applicable, all of the terms,
covenants and conditions of the Guaranty on Guarantor's part to be performed and
observed) shall have been delivered to Landlord at least ten (10) days prior to
the effective date of any such transaction; and (iv) in the case of any
transaction described in "(2)" or "(3)" above, Tenant shall provide Landlord
with twenty (20) days' prior written notice of such assignment or sublease to
such Related Entity. The successor to or assignee of Tenant named herein as a
result of any of the transactions expressly permitted pursuant to clauses (1),
(2) or (3) of this Section 12.9(A), the subtenant of Tenant named herein as a
result of any sublease expressly permitted pursuant to clause (3) above, UNITED
STATES TRUST COMPANY OF NEW YORK and a statutory bank holding company referred
to in subsection 12.9(D) below, are collectively referred to in this Lease as a
"Permitted Tenant".
(B) Tenant shall have the right to assign this Lease to the
Guarantor under the
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Guaranty of Lease provided that a duplicate original instrument of assignment
containing the standard form of assignment and assumption language found in a
"Blumberg" or Allstate" commercial form of assignment and assumption agreement,
duly executed by Tenant and the Guarantor, and in which instrument such assignee
assumes the observance and performance of, and agrees to be bound by, all of the
terms, covenants and conditions of this Lease on Tenant's part to be performed
and observed, shall have been delivered to Landlord at least ten (10) days prior
to the effective date of any such assignment. Upon the effectiveness of such
assignment, the Guaranty of Lease shall be released by Landlord and, upon
Tenant's request, Landlord shall deliver to Tenant a written confirmation of
such release.
(C) For purposes of this Section 12.9 and elsewhere in this Lease,
the term "Related Entity" shall mean an affiliated corporation or other business
entity (which, for purposes of this Section 12.9 and elsewhere in this Lease,
shall be a corporation or other business entity "controlling", "controlled by"
or "under common control with" Tenant).
(D) As used in this Section 12.9 and elsewhere in the Lease, the
terms "control", "controlled by" or "under common control with" shall mean
ownership of more than fifty percent (50%) of the outstanding voting stock of a
corporation or other majority equity and control interest if not a corporation
and the possession of power to direct or cause the direction of the management
and policy of such corporation or other entity, whether through the ownership of
voting securities, by statute, according to the provisions of a contract, or
otherwise. Further, the entity which shall then be a statutory bank holding
company owning (directly or indirectly) shares of capital stock or other
beneficial ownership interests in Tenant shall be deemed a Related Entity
notwithstanding that the ownership interest of such statutory holding company in
Tenant shall be less than 50%.
Section 12.10 Any agreement pursuant to which (A) Tenant is relieved from
the obligation to pay, or a third party agrees to pay on Tenant's behalf, all or
a part of Fixed Rent or Additional Rent under this Lease (other than any
exercise of Landlord's Option); and (B) any third party undertakes or is granted
any right to assign or attempt to assign this Lease or sublet or attempt to
sublet all or any portion of the Premises, shall be deemed an assignment of this
Lease and subject to the provisions of this Article 12.
Section 12.11 (A) If Tenant shall receive any consideration from its
assignee for or in connection with the assignment of Tenant's interest in this
Lease (including, but not limited to, sums paid for the sale or rental of
Tenant's Property, Alterations or any other Tenant fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in the case
of a sale thereof, the then net unamortized or undepreciated cost thereof
(determined on the basis of Tenant's federal income tax returns), Tenant shall
account to Landlord therefor and shall pay to Landlord, as additional rent
hereunder, fifty percent (50%) of such consideration as and when the same are
paid to Tenant by the assignee, less any brokerage commissions, attorneys' fees,
any fees and costs paid to Landlord pursuant to Section 12.1(D) hereof, the
costs of alterations made by Tenant for the purpose of preparing the Premises
for the assignee, and any real property transfer or transfer gains tax payments
required to be paid by Tenant in connection with any such assignment (excluding
income taxes imposed thereon), but only to the extent all of the same are
reasonable and are actually paid by Tenant. The foregoing provisions of this
Section 12.11(A) shall not apply to any assignment to a Permitted Tenant.
(B) If Tenant shall sublet the Premises to anyone for rents or other
consideration which for any period shall exceed the Fixed Rent and Additional
Rent payable under this Lease for the same period, Tenant shall account to
Landlord therefor and shall pay to Landlord, as additional rent hereunder, fifty
percent (50%) of such excess rents or other consideration as and when the same
are payable to Tenant by the subtenant, less any brokerage commissions,
attorneys' fees, any fees and costs paid to Landlord pursuant to Section 12.1(D)
hereof, the costs of alterations made by Tenant for the purpose of preparing the
Premises for the subtenant, and any real property transfer or transfer gains tax
payments required to be paid by Tenant in connection with any such subletting
(excluding income taxes imposed thereon), but only to the extent the same are
reasonable and are actually paid by Tenant. The foregoing provisions of this
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Section 12.11(B) shall not apply to any subletting to a Permitted Tenant.
Section 12.12 (A) If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of ll U.S.C. Section 101 et. seq (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to Tenant, then notice
of such proposed assignment shall be given to Landlord by Tenant no later than
twenty (20) days after receipt by Tenant of such bona fide offer, but in any
event no later than ten (10) days prior to the date that Tenant shall make
application to a court of competent jurisdiction for authority and approval to
enter into such assignment and assumption. Such notice shall set forth (a) the
name and address of such person, (b) all of the terms and conditions of such
offer, and (c) adequate assurance of future performance by such person under
this Lease, including, without limitation, the assurance referred to in Section
365 (b)(3) of the Bankruptcy Code. Landlord shall have the prior right and
option, to be exercised by notice to Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person.
(B) The term "adequate assurance of future performance" as used in
this Lease shall mean that any proposed assignee shall, among other things: (a)
deposit with Landlord on the assumption of this Lease an amount equal to the
then annual Fixed Rent and additional rent as security for the faithful
performance and observance by such assignee of the terms and obligations of this
Lease, which sum shall be held in accordance with the provisions of Article 29
hereof; (b) furnish Landlord with financial statements of such assignee for the
prior three (3) fiscal years, as finally determined after an audit and certified
as correct by a certified public accountant, which financial statements shall
show a net worth of at least two (2) times the net worth of Tenant named herein
as of the date of this Lease for each of such three (3) years; (c) grant to
Landlord a security interest in such property of the proposed assignee as
Landlord shall deem necessary to secure such assignee's future performance under
this Lease; and (d) provide such other information or take such action as
Landlord, in its reasonable judgment, shall determine is necessary to provide
adequate assurance of the performance by such assignee of its obligations under
this Lease.
ARTICLE 13
ELECTRICITY
Section 13.1 (A) Landlord shall furnish electric energy to Tenant in the
Premises measured by a check meter installed by Landlord as part of Landlord's
Work for the purpose of measuring Tenant's consumption of electric energy at and
within the Premises and all equipment and facilities therein including, but not
limited to, the A/C System servicing the Premises (whether or not located
therein). Tenant shall pay to Landlord, as Additional Rent, the amounts
determined by such check meter as Tenant's electricity consumption, at charges,
terms and rates set, from time to time during the term of this Lease, by the
utility servicing the Building under the service classification in effect
pursuant to which Landlord purchases electric energy for the entire Building
(without markup by Landlord, except that Landlord may include in Operating Costs
such fee as shall be allowed by law for Landlord's actual expenses in
administering, maintaining and billing of the electric usage as shown on such
checkmeter (the "Electrical Administration Fee").
(B) The rate payable by Tenant per kilowatt and kilowatt hour of
such electric service shall be equal to the rate charged Landlord per kilowatt
and kilowatt hour (utilizing the then current electrical rates applicable to
Landlord, including energy charges, demand charges, time-of-day charges, fuel
adjustment charges, rate adjustment charges, sales tax and any other factors
used by the utility servicing the Building in computing its charges to Landlord)
by the electric utility company supplying electric current for the entire
Building.
(C) Where more than one check meter measures the electric service to
Tenant, the electric service rendered through each check meter may be computed
and billed separately in accordance with the provisions hereinabove set forth.
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(D) Bills for electric energy furnished to Tenant, as measured by
such check meter or meters shall be rendered to Tenant at such time as Landlord
may elect, but not more frequently than once each month, and Tenant shall pay
the amount shown thereon to Landlord as Additional Rent in accordance with
Section 2.1(C).
Section 13.2 Except as set forth on the plans for Tenant's Initial
Alterations, Tenant agrees that it will make no electrical installations,
alterations, additions or changes to electrical equipment or appliances (other
than ordinary 120 volt so-called desktop or tabletop office machinery and
equipment) without the prior written consent of Landlord in each instance, which
consent Landlord agrees not to unreasonably withhold if, in Landlord's sole
reasonable judgment, such electrical installation, alteration, addition or
change will not affect any of the Building Systems including the Building's
mechanical or electrical systems or the Structural Elements. Tenant agrees to
perform any such work in accordance with the provisions of Article 4 hereof,
including the receipt of all required approvals of Landlord, Legal Authorities
or others.
Section 13.3 Tenant covenants and agrees that at all times its use of
electric current will not exceed the capacity of existing feeders to the
Building or the risers or wiring installation and Tenant will not use any
electrical equipment which will overload such installations or interfere with
the use thereof by other tenants of the Building. If, in Landlord's reasonable
judgment, Tenant's electrical requirements necessitate installation of an
additional riser, risers or other proper and necessary equipment, the same may
be installed if Landlord determines such installation is practicable, such
installation to be performed, at Tenant's option, by either Landlord, at
Tenant's sole cost and expense, which shall be chargeable and collectible as
additional rent and paid within thirty (30) days after the rendition of a bill
to Tenant therefor, or by Tenant in accordance with the terms and provisions of
Article 4 of this Lease, in which event Landlord may charge Tenant a supervisory
fee in connection therewith as provided in Section 4.7 above.
Section 13.4 The change at any time of the adequacy, quality or character
of electric service shall in no way make Landlord liable or responsible to
Tenant for any loss, damages or expenses which Tenant may sustain.
Section 13.5 Landlord shall have the right, in Landlord's sole discretion,
to select the utility provider and/or supplier of electric energy for the
Building. Landlord agrees to use commercially reasonable efforts to obtain the
lowest electrical rates readily available to it, but in doing so, Landlord shall
have the right to take into consideration the level and quality of service,
supply and product offered by prospective utility providers and/or suppliers.
Notwithstanding the foregoing, if Landlord is required by Legal Requirements to
permit Tenant to elect the services of an electric service provider other than
the public utility company that Landlord has selected to service the Building
(each such provider is called an "ASP"), Tenant shall have the right, with
Landlord's prior written consent, to convert to the services of an ASP to
provide electric service to Tenant and the Premises. Landlord shall not
reasonably withhold or delay its consent to the ASP so long as Tenant and the
ASP agree to comply with, and shall fully comply with, the terms and conditions
of this Lease including, without limitation, the provisions regarding
Alterations and insurance, as well as all requirements and conditions precedent
which Landlord shall, in its good faith judgment, require with respect to the
utilization of an ASP in order to protect Landlord and Landlord's interest in
the Building, the Building Systems and other tenants or occupants in the
Building. The conversion to an ASP shall be at Tenant's sole risk and at
Tenant's sole cost and expense, without any liability on the part of Landlord
with respect to the conversion and thereafter the utilization of electric
services provided by the ASP.
Section 13.6 Landlord hereby advises Tenant that Landlord shall furnish
and maintain throughout the Lease Term eight (8) watts per rentable square foot
of electric energy to the Premises, exclusive of electric energy consumed by the
A/C System and Heating System units servicing the Premises.
Section 13.7 At Tenant's option, Tenant may purchase from Landlord or its
designee all lighting tubes, lamps, bulbs and ballasts used in the Premises and
Tenant shall pay, on demand,
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as additional rent, Landlord's reasonable charges for providing and installing
the same.
ARTICLE 14
ACCESS TO PREMISES
Section 14.1 (A) Landlord, or Landlord's agents, shall have the right (but
shall not be obligated) to enter the Premises in an emergency, at any time, and,
in non-emergency situations, at other reasonable times on reasonable advance
oral notice to Tenant's office manager or assistant manager or other on-site
employee of Tenant with apparent authority, to examine the same and to make such
repairs, replacements and non-decorative improvements as Landlord may deem
necessary or desirable to any portion of the Building or which Landlord may
elect to perform in the Premises following Tenant's failure to make repairs or
perform any work which Tenant is obligated to perform under this Lease, or for
any other reasonable purpose. Landlord shall use commercially reasonable efforts
to minimize, to the extent reasonably practicable, interference with Tenant's
use of the Premises for the Permitted Use. Whenever such repairs or work is
necessary in order to perform work in another tenant's premises within the
Building, Landlord agrees whenever practicable to perform such repairs or work
in the Premises before or after "Business Hours" or on non-"Business Days" ( as
such terms are defined in Section 24.1). Tenant shall permit Landlord to use,
maintain and replace pipes and conduits in and through the Premises and to erect
new pipes and conduits therein, provided such new pipes and conduits are, to the
extent practicable, within the walls, above the ceiling or below the finished
floor (or, if not practicable, then "snug" to columns or ceilings whenever
practicable). Landlord may, during the progress of any work in the Premises,
take all necessary materials and equipment for the work then being performed
into the Premises without the same constituting an eviction nor shall the Tenant
be entitled to any abatement of Rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Landlord
shall, at Landlord's cost and expense, restore the Premises as nearly as
practicable to its prior condition after completion of such work and remove its
materials and equipment therefrom.
(B) Throughout the Term, Landlord shall have the right to enter the
Premises at reasonable hours for the purpose of showing the same to prospective
purchasers or Mortgagees or Lessors. During the twelve (12) month period prior
to the Fixed Expiration Date or the expiration of any Renewal Term, Landlord may
exhibit the Premises to prospective tenants thereof. Landlord agrees that for
all non-emergency entries into the Premises, Landlord's agents, representatives,
employees or contractors shall be accompanied by a representative of Tenant, if
Tenant elects to make one available, whose name or title shall be provided in
writing to Landlord.
(C) If Tenant is not present to open and permit an entry into the
Premises, Landlord or Landlord's agents may enter the same whenever such entry
may be necessary in the event of an 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 thereby. Nothing herein
contained, however, shall be deemed or construed to impose upon Landlord any
obligation, responsibility or liability whatsoever, for the care, supervision or
repair of the Premises or any part thereof, other than as herein expressly
provided.
Section 14.2 If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's Property from the Premises,
Landlord may immediately enter, alter, renovate or redecorate the Premises
without limitation or abatement of Rent, or incurring any liability to Tenant
for any compensation, and such act shall have no effect on this Lease or
Tenant's obligations hereunder.
ARTICLE 15
PARKING
Section 15.1 (A) (1) Landlord shall make available or cause to be made
available
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to Tenant up to seventy-five (75) parking spaces for use by Tenant, its agents,
employees or visitors in that certain multi-level parking garage located at 479
Rear Washington Boulevard, Jersey City, New Jersey and as shown substantially in
the location on the NEWPORT Site Plan by the designation "PARKING GARAGE" (the
"Parking Garage")
(2) Within ninety (90) days after the execution of this Lease
(TIME BEING OF THE ESSENCE), Tenant shall notify Landlord in writing of
the number of parking spaces (not to exceed seventy-five (75) parking
spaces) that Tenant shall require in the Parking Garage. In the event
Tenant shall fail to notify Landlord of the amount of parking spaces that
it so requires in the Parking Garage within said 90-day period, the number
of spaces which Landlord shall thereafter be obligated to make available
to Tenant in the Parking Garage shall be reduced to fifty (50).
Thereafter, at the time that Tenant shall take occupancy of the Premises
for the conduct of its business, Tenant may take all, part or none of the
fifty (50) available parking spaces in the Parking Garage.
(3) The parking spaces in the Parking Garage that Tenant
notifies Landlord it has selected pursuant to subsection (2) above are
referred to as the "Parking Spaces" and Landlord shall thereafter have no
further obligation to provide to Tenant more than the amount of Parking
Spaces so selected by Tenant; provided, however, that Landlord shall make
available or cause to be made available to Tenant up to one (1) parking
space per one thousand (1000) square feet in any Option Space added to the
Premises pursuant to Article 39, in the Parking Garage and shall be
governed by the terms and provisions of this Article 15. All Parking
Spaces which are made available to Tenant shall be solely for non-
commercial passenger vehicles.
(B) On the earlier of (i) the date upon which Tenant shall commence
using any of the Parking Spaces or (ii) sixty (60) days after the Rent
Commencement Date, Tenant shall pay, to Landlord, as Additional Rent, a monthly
rental charge per Parking Space (whether or not such spaces are actually
utilized by Tenant) equal to the prevailing market rate for automobile parking
in the Parking Garage established by Landlord, or the owner or the operator of
the Parking Garage (the "Parking Operator") from time to time, payable on the
first day of each month during the Term in the same manner as Fixed Rent.
Provided that (i) no Event of Default shall have occurred and be continuing
under this Lease and (ii) the Tenant shall be the Tenant named in this Lease
(U.S. TRUST COMPANY OF NEW JERSEY) or a Permitted Tenant, three (3) of the
Parking Spaces shall be provided by Landlord to Tenant throughout the Term of
this Lease free of any monthly rental charge.
(C) At the option of the owner or the Parking Operator, the Parking
Spaces shall be reserved or unreserved, assigned or unassigned, attended or
unattended; provided, however, that Landlord or the Parking Operator shall have
the right to change the assignment of designated Parking Spaces in the Parking
Garage, if any, at any time and from time to time during the Term.
Section 15.2 Except for making the Parking Spaces available to Tenant
hereunder, Landlord shall have no responsibility with respect to any matter
arising in connection with the furnishing of Parking Spaces to Tenant,
including, without limitation, any damage to the automobiles of Tenant and
Tenant's employees. Landlord shall, however, use commercially reasonable efforts
to cause the owner of the Parking Garage and/or the Parking Operator to insure
that the Parking Garage is adequately maintained throughout the Term. Tenant
shall have no right to charge or accept from any person, other than from
Tenant's employees on a monthly basis, any fee or other consideration for the
use of any of the Parking Spaces, and only those persons designated by Tenant
(the names of which shall be furnished in writing to Landlord as hereinafter
provided in Section 15.9), may use the Parking Spaces. Notwithstanding anything
contained herein to the contrary, Tenant may sublet any of the Parking Spaces
without the consent of Landlord, provided that such sublet is for the rental
charge equal to the prevailing rate for parking charged by the Parking Operator.
Section 15.3 Notwithstanding anything in this Lease or this Article 15 to
the contrary, Tenant's obligations under this Lease shall not be in any way
affected by Landlord's inability to
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make available or cause to be made available any or all of the Parking Spaces to
Tenant or Tenant's employees by reason of (A) Unavoidable Delays with respect to
any further construction of, or modification to, the Parking Garage, (B) damage
to the Parking Garage, (C) subject to the provisions of Section 11.1 hereof, the
whole or any part of the Parking Garage being acquired or condemned for any
public or quasi-public use or purpose, or (D) any other reason beyond Landlord's
reasonable control, subject, however, to the provisions of Section 15.6 below.
Section 15.4 If, on the Rent Commencement Date, Landlord has not provided
Tenant with the Parking Spaces in the Parking Garage as requested by Tenant
pursuant to Section 15.1(A)(2) above, Landlord will temporarily make available
to Tenant the non-exclusive use of the same number of parking spaces in the
"Parking Area" (as hereinafter defined) until the Parking Garage becomes
available.
Section 15.5 Tenant, in its use of the Parking Garage, shall at all times
observe the rules and regulations reasonably promulgated by Landlord or the
Parking Operator with respect to the use thereof. If Tenant, its agents,
employees or visitors shall fail to observe such rules and regulations, or shall
use any restricted spaces or areas, Landlord or the Parking Operator shall have
the right and option, in addition to any other remedy they may have, to have the
local police department arrange for the subject vehicle to be towed away and
stored at the sole risk and expense of the owner of such vehicle.
Section 15.6 If any portion of the Parking Garage shall become unavailable
for any reason whatsoever, Tenant's inability to use the same or the Parking
Spaces therein shall not relieve Tenant of any of its obligations under this
Lease, including the payment of Rent (other than the aforesaid parking fees) and
this Lease shall remain in full force and effect in accordance with its terms;
provided, however, that Landlord shall provide alternate parking facilities for
the use of Tenant and during the use of such alternate parking facilities,
Tenant shall pay a monthly charge for each space, at the same rate as would be
payable by Tenant for the unavailable Parking Spaces in the Parking Garage.
Alternate parking facilities within the following boundaries shall be deemed
acceptable to Tenant; Henderson Street, Thomas Gangemi Drive, Newport Parkway
and the Hudson River.
Section 15.7 Tenant hereby agrees that Tenant's use of the Parking Spaces
and Parking Garage shall be at Tenant's sole risk, and Landlord shall have no
liability to Tenant with regard thereto, nor shall Landlord be liable for any
damage or injury to Tenant, or its agents, employees or licensees, or the
property of any of the same, if any automobile or the contents thereof shall be
damaged, lost or stolen while in the Parking Garage.
Section 15.8 Tenant's use of the Parking Garage shall be in common with
other tenants of the Building, other tenants at other buildings located at or in
the NEWPORT development, the general public and other parties permitted by
Landlord, the owners of the Parking Garage or the Parking Operator to use the
Parking Garage.
Section 15.9 (A) (1) Landlord shall make available to Tenant, for use by
Tenant and those who may be designated by Tenant to use the Parking Spaces, one
(1) parking access card for each Parking Space made available to Tenant
hereunder (each, a "Garage Access Card" and collectively, the "Garage Access
Cards") in order to permit Tenant and its designated Parking Garage users, the
ability to enter the Parking Garage and use the Parking Spaces, as herein
provided.
(2) In the event that any Garage Access Card(s) provided to
Tenant are lost, damaged or destroyed, and Tenant requests that Landlord
furnish Tenant with replacement Garage Access Card(s) for those which have
been lost, damaged or destroyed, Landlord shall provide Tenant with such
replacement Garage Access Card(s) at Landlord's then cost for the same
("Replacement Cost") which shall initially be Twenty-Five (25.00) Dollars
per Garage Access Card.
(3) Tenant hereby acknowledges and agrees that at all times
during the Term,
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Tenant shall be entitled to obtain from Landlord and have in its
possession, only an amount of Garage Access Cards (whether original or
replacement, as aforesaid) equal to the amount of Parking Spaces made
available to Tenant hereunder.
(B) If required by the Parking Operator, Tenant shall provide
Landlord or the Parking Operator with a list of those persons to whom Tenant
shall have given permission to use Parking Spaces and any Garage Access Cards
issued to Tenant and the cars used by such persons, and shall provide Landlord
with the changes thereto, from time to time, but in no event more than once per
month during the Term.
(C) Upon the expiration of the Term of this Lease, Tenant shall
assign and deliver to Landlord any Garage Access Cards which Tenant shall have
received from Landlord or the Parking Operator. Tenant expressly assumes the
responsibility for the return of all Garage Access Cards in its possession, and
shall reimburse Landlord, as Additional Rent, for the then Replacement Cost of
any missing, lost, damaged or destroyed Garage Access Cards.
Section 15.10 In addition to the Parking Spaces, Landlord agrees to make
available directly to Tenant's employees, on a first-come, first-served basis,
to the extent available, parking spaces (the "Additional Parking Spaces") in the
parking garages or parking lots located elsewhere in the NEWPORT project within
walking distance of the Building as shown within the radius depicted on the
NEWPORT Site Plan (the "Parking Area") up to a maximum number (the "Maximum
Number") equal to the difference between (i) 126 and (ii) the number of Parking
Spaces selected by Tenant pursuant to subsection 15.1(A)(2) above. From time to
time during the Term, Tenant shall provide Landlord with reasonable advance
notice of the number of Additional Parking Spaces its employees desire up to the
Maximum Number, together with the names of employees desiring Additional Parking
Spaces. Charges for the Additional Parking Spaces, which shall be equal to the
prevailing market rate for automobile parking established by Landlord or the
applicable owner or operator of the parking facility in the Parking Area being
used, shall be paid directly by Tenant's employees when they commence using the
Additional Parking Spaces. Except for providing Additional Parking Spaces in the
Parking Area to Tenant's employees to the extent such Additional Parking Spaces
are available, Landlord shall have no liability or obligation to Tenant or its
employees with respect to the Additional Parking Spaces, nor shall Landlord be
liable for any damage or injury to Tenant's employees or their property, if any
automobile or the contents thereof shall be damaged, lost or stolen while in the
Parking Area.
ARTICLE 16
DEFAULT
Section 16.1 Each of the following events or occurrences shall be an
"Event of Default" hereunder:
(A) if Tenant shall default in the payment when due of any
installment of Fixed Rent or any other item of Rent and such default shall
continue for ten (10) days after notice from Landlord; provided, however, that
Tenant shall be entitled to receive from Landlord no more than two (2) notices
in any twelve (12) month period of its failure to timely pay Rent; or
(B) if Tenant's interest or any portion thereof in this Lease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted under Article 12 hereof; or
(C) (1) if Tenant shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due; or
(2) if Tenant shall commence or institute any case, proceeding
or other action (a) seeking relief on its behalf as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts under any existing or
future law
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of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (b) seeking
appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property; or
(3) if Tenant shall make a general assignment for the benefit
of creditors; or
(4) if any case, proceeding or other action shall be commenced
or instituted against Tenant (a) seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (b) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial
part of its property, which in either of such cases (i) results in any
such entry of an order for relief, adjudication of bankruptcy or
insolvency or such an appointment or the issuance or entry of any other
order having a similar effect or (ii) remains undismissed for a period of
ninety (90) days; or
(5) if any case, proceeding or other action shall be commenced
or instituted against Tenant seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its property which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within ninety (90) days from the entry thereof; or
(6) if Tenant shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is appointed for
any substantial part of the assets of Tenant which appointment is not
vacated or stayed within seven days (the aforesaid events set forth in
this subsection 16.1(C) are hereinafter referred to individually as a
"Bankruptcy Event" or collectively, as "Bankruptcy Events"); or
(D) if this Lease is assigned (or all or a portion of the Premises
are subleased) to a Related Entity of Tenant and such Related Entity shall no
longer (i) control, (ii) be under common control with, or (iii) be under the
control of Tenant (or any permitted successor by merger, consolidation or
purchase as provided in Article 12), unless Tenant shall comply with the
provisions of Article 12 of this Lease; or
(E) if Tenant shall default in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be observed
or performed and Tenant shall fail to remedy such default within twenty (20)
days after notice by Landlord to Tenant of such default except that if such
default is of such a nature that it cannot with due diligence be completely
remedied within said period of twenty (20) days, and the continuance of which
for the period required for such cure will not (1) subject Landlord or any
Lessor or any Mortgagee to prosecution for a crime or any other fine or charge
(unless Tenant agrees, in a writing satisfactory to Landlord, to pay and
discharge such fine or charge), (2) subject the Premises, or any part thereof,
and/or the Land and/or the Building, respectively, or any part thereof, to being
condemned or vacated, (3) subject the Land and/or the Building, respectively, or
any part thereof, to any lien or encumbrance, or (4) result in the termination
of any Superior Lease or foreclosure of any Mortgage, respectively, then in that
event Tenant shall be entitled to such reasonable additional period of time to
effectuate the cure or remedy of such default or failure, provided, however,
that Tenant shall (x) duly advise Landlord of its intention to take all
necessary steps to remedy or cure such default or failure and commence the
prosecution of such cure or remedy, all within such twenty (20) day period, and
(y) thereafter diligently prosecute to completion all steps necessary to remedy
or cure the default or failure, and (z) complete such remedy or cure within a
reasonable time after the date of said notice from Landlord; or
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(F) if that certain "Guaranty of Lease" (as defined in Article 40)
shall not be in full force and effect at any time during the Term of this Lease,
or if Guarantor shall default in the due observance or performance of any of the
terms of the Guaranty, or if Guarantor shall repudiate the Guaranty, or if the
Guaranty shall terminate, or be terminated for any reason (unless Landlord shall
have expressly consented, in writing, to such termination or unless termination
occurs concurrently with an assignment of this Lease by Tenant or any Permitted
Tenant to the named Guarantor of the Guaranty of Lease, UNITED STATES TRUST
COMPANY OF NEW YORK), or if any event described in Section 16.1(C) above shall
occur with respect to the Guarantor (as opposed to the Tenant) which (i) results
in an entry of an order for relief, adjudication of bankruptcy or insolvency or
an appointment or the issuance or entry of any other order having a similar
effect or (ii) remains undismissed for a period of ninety (90) days (unless a
substitute Guarantor acceptable to Landlord shall execute and deliver to
Landlord a guaranty in the form of the Guaranty of Lease).
Section 16.2 (A) If any Event of Default shall occur and Landlord, at any
time thereafter, at its option, gives written notice (a "Termination Notice") to
Tenant stating that this Lease and the Term shall expire and terminate on the
date Landlord shall give Tenant such notice, then this Lease and the Term and
all rights of Tenant under this Lease shall expire and terminate as if the date
on which such notice is given to Tenant by Landlord were the Fixed Expiration
Date and Tenant immediately shall quit and surrender the Premises, but Tenant
shall nonetheless be liable for all of its obligations hereunder, as provided
for in Article 17 hereof. Notwithstanding the foregoing, if the Event of Default
in question results from Tenant's failure to pay Rent, then the Termination
Notice shall be given at least five (5) days prior to the termination date set
forth in such Termination Notice and Tenant shall have the right to cure such
failure to pay Rent within the five (5) day period commencing upon Tenant's
receipt of such Termination Notice. If within such five-day period, TIME BEING
OF THE ESSENCE, Tenant pays to Landlord (i) all Rent then due and owing, (ii)
all interest accrued thereon at the Interest Rate, and (iii) an agreed upon late
payment fee equal to (1) Fifteen Thousand and no/100 Dollars ($15,000.00) in the
case of a failure to pay Fixed Rent or (2) five (5%) percent of the amount of
Rent then due and owing in the case of a failure to pay any item of Rent other
than Fixed Rent, respectively, then, in that event, and only in that event, such
Termination Notice shall be deemed null and void and this Lease shall continue
in full force and effect as if such Event of Default had not occurred.
(B) Anything contained herein to the contrary notwithstanding, if
such termination shall be stayed by order of any court having jurisdiction over
any proceeding described in Section 16.1(C) hereof, or by federal or state
statute, then, following the expiration of any such stay, or if the trustee
appointed in any such proceeding, Tenant or Tenant as debtor-in-possession shall
fail to assume Tenant's obligations under this Lease within the period
prescribed therefor by law or within one hundred twenty (120) days after entry
of the order for relief or as may be allowed by the court, or if said trustee,
Tenant or Tenant as debtor-in possession shall fail to provide adequate
protection of landlord's right, title and interest in and to the Premises or
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease as provided in Section 12.4, Landlord, to the
extent permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease on
five (5) days' notice to Tenant, Tenant as debtor-in-possession or said trustee
and upon the expiration of said five (5) day period this Lease shall cease and
expire as aforesaid and Tenant, Tenant as debtor-in-possession or said trustee
shall immediately quit and surrender the Premises as aforesaid.
(C) If any Bankruptcy Event shall occur, or this Lease shall be
terminated as provided in Section 16.2(A) hereof, Landlord, without notice, may
reenter and repossess the Premises using such force for that purpose as may be
necessary without being liable to indictment, prosecution or damages therefor
and may dispossess Tenant by summary proceedings or otherwise.
Section 16.3 If at any time, (i) Tenant shall comprise two (2) or more
persons, or (ii) Tenant's interest in this Lease shall have been assigned, the
word "Tenant," as used in Section
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16.1(B) and (C), shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this Lease. Any
monies received by Landlord from or on behalf of Tenant during the pendency of
any Bankruptcy Event proceeding shall be deemed paid as compensation for the use
and occupation of the Premises and the acceptance of any such compensation by
Landlord shall not be deemed an acceptance of Rent or a waiver on the part of
Landlord of any rights under Section 16.2.
ARTICLE 17
REMEDIES AND DAMAGES
Section 17.1 (A) If there shall occur any Event of Default, and this Lease
and the Term shall expire and come to an end as provided in Article 16 hereof:
(1) Landlord may, upon five (5) days prior notice, re-enter
the Premises and dispossess Tenant and/or the legal representative of
Tenant or any other occupant of the Premises, respectively, by summary
proceedings or otherwise, and may repossess the Premises and remove
therefrom the contents and effects of Tenant and/or the legal
representative of Tenant or any other occupant, and hold the Premises as
if this Lease had not been made.
(2) Landlord may, at its option, relet the whole or any
portion or portions of the Premises, at any time or from time to time,
either in the name of Landlord or otherwise, to such tenant or tenants,
for such term or terms ending before, on or after the Fixed Expiration
Date, at such rental or rentals and upon such other conditions, which may
include concessions and free rent periods, as Landlord in its sole
discretion, may determine, and in no event shall Tenant be entitled to
receive any excess of net rentals collected over the rent and additional
rent payable by Tenant hereunder, and Landlord, at Landlord's option, may
make such repairs, replacements, alterations, additions, improvements,
decorations and other physical changes in and to the Premises as Landlord,
in its sole discretion, considers advisable or necessary in connection
with any such reletting or proposed reletting, without relieving Tenant of
any liability under this Lease or otherwise affecting any such liability.
(B) Tenant hereby waives the service of any notice of intention to
re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such persons might otherwise have under any present or future law to redeem the
Premises, or to re-enter or repossess the Premises, or to restore the operation
of this Lease, after (a) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, or (b) any re-entry by Landlord, or (c) any
expiration or termination of this Lease and the Term, whether such dispossess,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this Lease.
(C) The words "re-enter", "re-entry" and "re-entered" as used in
this Lease shall not be deemed to be restricted to their technical legal
meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The right to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
Section 17.2 (A) If this Lease and the Term shall expire and come to an
end as provided in Article 16 hereof, or by or under any summary proceeding or
any other action or proceeding by Landlord against Tenant or any person claiming
by, through or under Tenant, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary
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proceeding or any other action or proceeding, respectively, then, in any of said
events:
(1) Tenant shall pay to Landlord all Fixed Rent, Additional
Rent and other charges payable under this Lease by Tenant to Landlord to
the date upon which this Lease and the term shall have expired or has been
terminated by Landlord and come to an end;
(2) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as advanced Rent, security deposit or
otherwise, but such monies shall be credited by Landlord against any
damages payable by Tenant to Landlord;
(3) Tenant also shall be liable for and shall pay to Landlord
as liquidated damages, any deficiency (the "Deficiency") between the Rent
reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the term including any Renewal Term
exercised by Tenant prior to the termination of this Lease or re-entry by
Landlord (conclusively presuming the Additional Rent to be the same as was
payable for the year immediately preceding such termination or re-entry)
and the net amount, if any, of rents collected under any reletting of all
or part of the Premises for any part of such period, after first deducting
therefrom the rents actually collected under any such reletting, all of
Landlord's expenses in connection with the termination of this Lease and
Landlord's re-entry upon the Premises and in connection with such
reletting including, without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorneys' fees, court costs and
disbursements, alteration costs (not to exceed the quality of Tenant's
Alterations) and other expenses required for the preparation of the
Premises for such reletting, and the amount of rent concessions,
construction allowance and the like granted in connection with such
reletting (collectively, the "Default Expenses"); it being agreed and
understood by Tenant that any such Deficiency shall be paid in monthly
installments by Tenant on the days specified in this Lease for payment of
installments of Fixed Rent, and that Landlord shall be entitled to recover
from Tenant each monthly Deficiency as the same shall arise, and no suit
to collect the amount of the Deficiency for any month shall prejudice
Landlord's right to collect the Deficiency for any subsequent month by a
similar proceeding; and
(4) whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiencies (other than the Default Expenses), as and for
liquidated and agreed final damages, and not as penalty, a sum equal to
the amount by which the sum of the Rent reserved in this Lease for the
period which otherwise would have constituted the unexpired portion of the
Term, including any Renewal Term exercised by Tenant prior to the
termination of this Lease or re-entry by Landlord (conclusively presuming
the Additional Rent to be the same as was payable for the year immediately
preceding such termination or re-entry) exceeds the then fair and
reasonable rental value of the Premises for the same period, both
discounted to the then present value of such sum at the rate equal to the
rate of U.S. Treasury obligations having a maturity closest to such
unexpired portion of the Term, and less the aggregate amount of
Deficiencies theretofore collected by Landlord pursuant to the provisions
of subdivision (3) above, for the same period; it being agreed and
understood by Tenant that if before presentation of proof of such
liquidated damages to any court, commission or tribunal, the Premises, or
any part thereof, shall have been relet in a bona-fide arm's length
transaction by Landlord for the period which otherwise would have
constituted the unexpired portion of the Term, or any part thereof, the
amount of rent reserved upon such reletting shall be conclusively deemed,
prima facie, to be fair and reasonable rental value for the part of the
whole of the Premises so relet during the term of the reletting.
(B) In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies
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were not herein provided for. Mention in this Lease of any particular remedy,
shall not preclude Landlord from any other remedy, at law, in equity or
otherwise.
(C) Tenant shall in no event be entitled to any rents collected or
payable under any reletting by Landlord, whether or not such rents shall exceed
the Fixed Rent reserved in this Lease. Nothing contained in Article 16 or this
Article 17 shall be deemed to limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages by any statute or
rule of law, or of any sums or damages to which Landlord may be entitled under
this Lease or by any statute or rule of law in addition to the damages set forth
in this Section 17.2.
Section 17.3 If an Event of Default shall occur hereunder, then, in
additional to and not in limitation of Landlord's other rights and remedies
hereunder, Landlord may immediately or at any time thereafter, and without
notice to Tenant, perform the obligation(s) of Tenant which is the subject of
such Event of Default. If Landlord, in connection therewith makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to reasonable attorneys' fees and court costs, in instituting,
prosecuting or defending any actions or proceeding, then Tenant shall reimburse
Landlord for such sums so paid or obligations incurred with interest at the
Interest Rate and costs. The foregoing expenses incurred by reason of Tenant's
Event of Default shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Landlord within thirty (30) days of rendition of any bill or
statement to Tenant therefor with interest thereon at the Interest Rate from the
date such expenses were incurred. If the Term shall have been terminated or if
Landlord shall have reentered the Premises at the time of making of such
expenditures or incurring of such obligations, such sums shall be deemed Default
Expenses and shall be recoverable by Landlord as damages.
ARTICLE 18
INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION
ARTICLE 19
BUILDING ALTERATIONS AND MANAGEMENT; CHANGES IN BUILDING
FACILITIES, SYSTEMS AND NAME; BUILDING DIRECTORY
Section 19.1 (A) (1) Landlord shall have the right, at any time during the
Term, without the same constituting an eviction and without incurring liability
to Tenant therefore, to make such changes in or to the Building, the Structural
Elements and/or the Building Systems, and the fixtures and equipment thereof,
respectively, as well as in or to the street entrances, halls, passages,
elevators, escalators and stairways thereof, as Landlord may deem necessary or
desirable, and/or change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets (provided
that any change to the location, number or arrangement of toilets is required by
changes in Legal Requirements after the date hereof including, but not limited
to, compliance with Title III of the Americans with Disabilities Act of 1990 and
the Accessibility Guidelines for Buildings and Facilities issued pursuant
thereto, as modified and amended from time to time) or other public parts of the
Building.
(2) (a) Landlord hereby agrees that any changes or
modifications to the Structural Elements, the Building Systems and/or any
of the other portions of the Building and its common areas described above
in subsection 19.1(A)(1) (collectively, the "Building Changes"), shall not
unreasonably or materially interfere with the operation of Tenant's
business.
(b) Landlord shall give Tenant notice of any Building
Changes which Landlord shall intend to make to the Building, together with
sufficient information for Tenant to determine its impact on the conduct
of Tenant's business in the Premises. In the event that Tenant determines
that any of the above described Building Changes which Landlord shall or
intends to make will require changes or modifications to the
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Premises or to Tenant's Alterations, installations or equipment therein,
Tenant shall promptly advise Landlord, in writing, of such fact, which
notice shall set forth with reasonable specificity the manner in which the
proposed Building Changes will cause a change or modification to the
Premises or Tenant's Alterations, installations or equipment therein.
(c) If Tenant so advises Landlord, as provided in
paragraph (b) above, then Landlord and Tenant will thereafter meet to
discuss whether any change or modification to the Premises, or to Tenant's
Alterations, installations or equipment will, in fact, be necessitated by
the proposed Building Change, as claimed in Tenant's notice, and, if so,
Landlord and Tenant will further discuss whether the proposed Building
Change can be modified so that no change or modification is required to
the Premises or to Tenant's Alterations, installations or equipment
therein and if no reasonable modification can be made to the Building
Change, Landlord shall either, at Landlord's option, (x) perform the
required change or modification to the Premises, and/or to any
Alterations, installation or equipment therein necessitated by the
Building Change or (y) reimburse Tenant for the reasonable costs in making
such changes or modifications to the Premises and/or to the Alterations,
installations or equipment therein.
(B) Except as is otherwise expressly provided in Section 25.2 of
this Lease, there shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Landlord for inconvenience, annoyance or injury
to business arising from Landlord or other tenants making any repairs in the
Building or any alterations, additions and improvements. Notwithstanding the
foregoing, in the event that the rentable square feet in the Premises is
permanently decreased more than a de minimis amount, there shall be an equitable
reduction in Rent payable by Tenant hereunder.
(C) Tenant shall not have any claim against Landlord by reason of
Landlord's imposition of such controls or the manner of access to the Building
by Tenant's social or business visitor as the Landlord may deem necessary for
the security of the Building and its tenants and occupants.
Section 19.2 (A) (1) The Building when completed will be known as "Newport
Office Center III" with an address at 499 Washington Boulevard. However,
Landlord may thereafter adopt any name for the Building, and may change the
name, address, number or designation of the Building, at any time during the
Term. Landlord shall maintain a numbered Washington Boulevard street address for
the Building throughout the Term. A temporary sign depicting the Building's
address as set forth above shall be in place by the Commencement Date.
(2) Notwithstanding the foregoing provisions of this Section
19.2, Landlord hereby agrees that for so long as (a) Tenant under this
Lease is a Permitted Tenant, (b) no Event of Default shall have occurred
or be continuing, and (c) the Premises under this Lease shall consist of
at least two (2) full floors of the Building, Landlord shall not change
the name or designation of the Building to any of the names or
designations listed on Schedule 4 annexed hereto and made a part hereof
(collectively, the "Excluded Names").
(B) If Landlord erects a monument sign on the plaza area in front of
the Building identifying the Building (including its then name) and the tenants
then occupying premises in the Building (the "Plaza Sign"), Landlord shall, at
Landlord's cost, include the name of Tenant on such Plaza Sign in such order of
listing or naming as Landlord shall deem appropriate it being agreed and
understood by Tenant that such right to be listed on the Plaza Sign shall (1)
exist for so long as this Lease is in full force and effect, and (2) be
nonexclusive in nature. At Landlord's discretion, the listings on the Plaza Sign
may be in vertical order (in which event Tenant's name shall be second thereon),
horizontal order or broken up into blocks (in which event the listing for the
Tenant named herein shall occupy the top right block). Nothing herein contained
shall prohibit tenants with premises containing equal or greater space from
having a listing on the Plaza Sign equal to or proportionately greater than
Tenant's listing on the Plaza Sign.
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Section 19.3 Landlord, at its expense and at Tenant's written request,
shall maintain listings on the Building's electronic directory of the names of
Tenant and any others in lawful occupancy of the Premises, and the names of
their respective officers and employees, provided that the names so listed shall
not take up more than Tenant's Operating Share of the space on the Building's
electronic directory, which share shall not be less than five hundred (500)
listing lines. Such quantity of listing lines shall initially be provided to
Tenant at no additional expense, but any excess listings, if permitted by
Landlord, or any subsequent changes of listings, in excess of four (4) times per
year, respectively, as the case may be, shall be at Tenant's expense, at
Landlord's then standard charge therefor. All listings requested shall be
generally consistent with then Building standard practice.
ARTICLE 20
NO REPRESENTATIONS BY LANDLORD
Neither Landlord nor Landlord's agents or employees have made any
representations or promises with respect to the physical condition of the
Property and/or the Premises, the rents, leases, expenses of operation, or any
other matter or thing affecting or related to the Premises except as may be
expressly set forth in this Lease, and no rights, easements or licenses are
acquired by Tenant hereunder by implication or otherwise, except as may be
expressly set forth in the provisions of this Lease.
ARTICLE 21
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant's timely
payment of the Fixed Rent and Additional Rent and timely observing and
performing all the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed, Tenant may peaceably and quietly enjoy the
Premises, subject, however, to the terms and provisions of this Lease and,
subject to the terms and provisions of any Non-Disturbance Agreements, to all
Superior Leases and Mortgages affecting the Property.
ARTICLE 22
WAIVERS
Section 22.1 The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of any term, covenant or condition of this
Lease including, without limitation, any of the "Rules and Regulations" (as
defined in Article 29 of this Lease), shall not be construed as a waiver of any
other term, covenant, condition or rule, or as a waiver of any future right to
enforce or insist upon performance of any of the same. The receipt by Landlord
of Rent with knowledge of the breach of any covenant of this Lease shall not be
deemed to be a waiver of such breach, and no provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver shall be in writing
and signed by an authorized official of Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Fixed Rent or any
payment of Additional Rent shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check
(e.g., "payment under protest") or any letter accompanying any check or payment
of Rent be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy provided in this Lease.
Section 22.2 No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises and no
agreement to accept such surrender shall be valid unless such acceptance is in
writing and signed by Landlord. No
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employee of Landlord or Landlord's agent shall have any power to accept the keys
for the Premises prior to the expiration of this Lease, and the delivery of keys
to any such agent or employee shall not operate as a expiration of this Lease or
a surrender of the Premises.
Section 22.3 The failure of Tenant to seek redress for violation of, or to
insist upon the strict performance of any term, covenant or condition of this
Lease on Landlord's part to be performed, shall not be construed as a waiver of
any term, covenant or condition, or prevent a subsequent act which would have
originally constituted a violation of the provisions of this Lease from having
all of the force and effect of an original violation of the provisions of this
Lease. The payment by Tenant of Fixed Rent or any other item of Rent or the
performance of any obligation of Tenant hereunder with knowledge of any breach
by Landlord of any covenant of this Lease shall not be deemed a waiver of such
breach, and payment of same by Tenant shall be without prejudice to Tenant's
right to pursue any remedy against Landlord in this Lease provided.
ARTICLE 23
WAIVER OF TRIAL BY JURY
Section 23.1 It is mutually agreed by and between Landlord and Tenant that
the respective parties hereto shall and do hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the
Premises, and any emergency statutory or any other statutory remedy.
Section 23.2 It is further mutually agreed that in the event Landlord
commences any summary proceeding for possession of the Premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding, except, however, for any mandatory counterclaim required by
applicable court rules.
ARTICLE 24
SERVICES
Section 24.1 (A) For purposes of this Lease, "Business Hours" shall mean
normal Building operation hours of 8:00 A.M. to 6:00 P.M. on weekdays, and
"Business Days" shall mean Monday through Friday, except for those days
designated as legal holidays by the Federal government or by the State of New
Jersey.
(B) For so long as this Lease shall remain in effect, Landlord shall
provide:
(1) twenty-four (24) hour a day, seven (7) days a week access
to the Building and the Premises, subject, however, to Landlord's
reasonable security requirements, which shall include (a) initially, a
computer controlled card access system to the Building's elevator lobby,
which card access system may be modified, altered or changed by Landlord,
as required during the Lease term, upon reasonable advance notice to
Tenant;
(2) a security guard in the Building twenty-four (24) hours a
day, seven (7) days a week;
(3) a concierge service in the Building lobby during Business
Hours on all Business Days, and on Saturdays from 8:00 A.M. to 12:00 Noon;
(4) it is agreed and understood that if Tenant uses and
occupies the Premises on non-Business Days or after Business Hours on
Business Days and requests that Landlord provide Building services to
Tenant that are otherwise not required to be provided by Landlord
hereunder during such periods of time, including making Building
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personnel available to Tenant on non-Business Days or after Business Hours
on Business Days, respectively, as the case may be, Tenant agrees, at its
own cost and expense, to reimburse Landlord, as Additional Rent in
accordance with Section 2.1(C), for all of Landlord's fees, costs and
expenses in providing such Building services to Tenant and/or in having
such Building personnel available to Tenant; provided, however, that where
more than one (1) tenant in the Building shall require any services during
such periods of time, the fees, costs and expenses in providing such
Building services shall be equitably apportioned between or among such
tenants except as otherwise expressly provided in this Article 24;
(5) (a) passenger elevator service to the Premises (it being
agreed that one (1) passenger elevator shall be available to service the
Premises by February 1, 2000 and six (6) passenger elevators shall be
available to service the Premises from and after May 1, 2000 throughout
the Term); provided, however, that during non-Business Hours and on non-
Business Days Landlord shall not be required to operate more than one (1)
passenger elevator in the Building to serve the Premises;
(b) freight elevator service to the entire Building on a
"first come, first served" basis on Business Days during Business Hours
(less one (1) hour for lunch), and on a reservation, "first come, first
served" basis after Business Hours on Business Days and at any time on
non-Business Days; it being agreed and understood that if Tenant shall use
the freight elevators serving the Premises after Business Hours on
Business Days or on any non- Business Days, Tenant shall pay Landlord for
such use, as Additional Rent in accordance with Section 2.1(C). The rate
for such use for the twelve (12) month period commencing with the Rent
Commencement Date shall be as set forth on Exhibit J annexed hereto and
made a part hereof, which rate shall thereafter be subject to increases in
accordance with Section 24.7 hereof; it being further agreed and
understood, however, that Landlord shall make available to Tenant the use
of the freight elevator or hoist without payment by Tenant of any fee,
cost or expense, during Tenant's performance of its Initial Alterations
and its initial moving-in of its furniture, installations and equipment to
the Premises, even if such use occurs on non- Business Days or after
Business Hours on Business Days; and
(c) use of the loading dock on a "first come, first
served" basis on Business Days during Business Hours, upon reasonable
prior notice to Landlord (which may be given orally to the Building
management office).
(6) heating to the Building as described in Section 24.2 below
and ventilation and air conditioning to the Premises as described in
Section 24.3 below;
(7) water for ordinary drinking, cleaning and lavatory
purposes, but if Tenant uses or consumes water for any other purpose or in
unusual quantities (of which fact Landlord shall be the sole judge),
Landlord may install a water meter at Tenant's expense which Tenant shall
thereafter maintain at Tenant's expense in good working order and repair
to register such water consumption, and Tenant shall pay for water
consumed as shown on said meter as additional rent, as and when bills are
rendered by Landlord; Tenant shall pay the sewer rent, charge or any other
tax, rent, levy or charge which now or hereafter is assessed, imposed or
shall become a lien upon the Premises or the Property of which they are a
part pursuant to any Legal Requirement made or issued in connection with
any such metered use, consumption, maintenance or supply of water, water
system, or sewage or sewage connection or system; and the bill rendered by
Landlord for the above shall be based upon Tenant's consumption and shall
be payable by Tenant, as Additional Rent in accordance with Section
2.1(C);
(8) Building-standard cleaning services on Business Days,
which cleaning services shall be as described on Exhibit C annexed hereto
and made a part hereof, or substantially the same as those described on
Exhibit C, (which cleaning services shall not include any additional
cleaning services required as a result of the storage,
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preparation, service or consumption of food or beverages in portions of
the Premises); provided, however, that the Premises are kept in neat order
and condition by Tenant; it being agreed and understood by Tenant that:
(a) Tenant shall pay Landlord the cost of removal of any of the Tenant's
refuse and rubbish from the Building beyond normal office requirements;
(b) Tenant, at Tenant's sole cost and expense, shall cause all portions of
the Premises used for the storage, preparation, service or consumption of
food or beverages to be cleaned daily in a manner satisfactory to
Landlord, and to be exterminated against infestation by vermin, rodents or
roaches regularly and, in addition, whenever there shall be evidence of
any infestation, any such exterminating shall be done at Tenant's sole
cost and expense, in a manner satisfactory to Landlord, and by persons
approved by Landlord; (c) if Tenant shall perform any cleaning services in
addition to the Building-standard cleaning services, Tenant shall employ
the cleaning contractor providing cleaning services to the Building on
behalf of Landlord or such other cleaning contractor as shall be
reasonably approved by Landlord subject, however, to Tenant's compliance
with the terms and provisions of Section 4.4(C) of this Lease; and (d)
Tenant shall comply with any recycling program and/or refuse disposal
program (including, without limitation, any program related to the
recycling, separation or other disposal of paper, glass or metals) which
Landlord shall impose or which shall be required pursuant to any Legal
Requirements.
Notwithstanding anything to the contrary contained in this Section 24.1(B),
Landlord will not be obligated to provide any services which require Tenant to
be billed separately therefor as long as an Event of Default shall exist and be
continuing under this Lease.
Section 24.2 (A) Landlord shall, as part of Landlord's performance by
itself and its contractor(s) of the "Base Building Work" (as such term is
hereinafter defined in Section 36.1(B) hereof) install or cause to be installed
on each floor of the Premises, a perimeter electric base board heating system.
Such base board electric heating system, together with all machinery, equipment
and infrastructure required to operate the same, is collectively called the
"Heating System".
(B) Except for those charges payable by Tenant under subparagraph
(C) following, the electric energy required to operate the Heating System in the
Premises shall be measured by the Building's electric meter and shall be
included within Operating Costs as part of the Building's electric usage, as to
which Tenant shall be required to pay Tenant's Operating Share.
(C) During Business Hours of Business Days, Landlord shall furnish,
at no cost or expense to Tenant, sufficient heat to the Premises through the
Heating System to meet the criteria set forth on Exhibit D annexed hereto and
made a part hereof. Tenant hereby agrees that if Tenant requires the provision
of heat to the Premises at times other than on Business Hours of Business Days,
Landlord will, upon reasonable advance notice from Tenant, operate the Heating
System to provide such heat to Tenant and furnish such heat to the Premises.
Tenant shall pay Landlord, as Additional Rent in accordance with Section 2.1(C),
for all Landlord's costs and expenses required to operate the Heating System,
including any electric energy charges, to furnish Tenant and the Premises with
such non-Business Hours/Business Days heat. The rate for such costs and expenses
for the twelve (12) month period commencing with the Rent Commencement Date
shall be as set forth on Exhibit J, which rate shall thereafter be subject to
increases in accordance with Section 24.7 hereof. Where more than one tenant in
the Building shall be using the Heating System during such non-Business
Hours/Business Days, the costs and expenses thereof shall be apportioned between
or among such tenants based on the number of tenants requesting the Heating
System.
Section 24.3 (A) In addition, as part of the Base Building Work, Landlord
shall install or cause to be installed on each floor of the Premises, two (2)
seventy (70) ton packaged water cooled, variable air volume "VAV" air
conditioning units which are designed to meet the ventilating and air
conditioning criteria also set forth on said Exhibit D. Such water cooled, VAV
air conditioning units, together with all machinery, equipment and
infrastructure required to
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operate the same, are collectively called the "A/C System". Each unit of the A/C
System shall include a heating coil.
(B) Tenant shall be responsible, at Tenant's sole cost and expense,
to pay for all electric energy consumed in the use and operation of the A/C
System. Landlord shall, as part of the performance of the Base Building Work,
connect the A/C System to Tenant's electric check meter as more particularly
described in Article 13 of this Lease, in order to measure Tenant's consumption
of electric energy in Tenant's use of the A/C System. Each tenant in the
Building will be billed in the same manner as provided herein.
(C) During Business Hours of Business Days, Landlord shall furnish,
at no cost or expense to Tenant, sufficient quantities of condenser water from
Landlord's cooling tower equipment located on the roof of the Building, required
to operate the A/C System to meet said criteria. The Landlord's cooling tower
equipment, together with the pipes, machinery and other equipment required to
transport the condenser water from such machinery on the roof of the building to
Tenant's A/C System is called the "Building Condenser Water System".
(D) Tenant hereby agrees that if Tenant operates the A/C System at
times other than during Business Hours of Business Days, then Tenant shall be
required to reimburse Landlord, as Additional Rent in accordance with Section
2.1(C), for (i) all condenser water supplied by Landlord to Tenant to operate
the A/C System during such time, and (ii) all additional costs incurred by
Landlord to operate Tenant's A/C System and the Building Condenser Water System.
The rate for such costs and expenses for the twelve (12) month period commencing
with the Rent Commencement Date shall be as set forth on Exhibit J, which rate
shall thereafter be subject to increases in accordance with Section 24.7 hereof.
Where more than one tenant in the Building shall be using the Building Condenser
Water System to service the A/C System in such tenant's premises during such
non-Business Hours/Business Days, the costs and expenses thereof shall be
apportioned between or among such tenants according to the number of mechanical
equipment rooms being used by such tenants. In addition, the wear and tear on,
additional maintenance to, and depreciation of, the Building Condenser Water
System from Tenant's use of the A/C System other than during Business Hours of
Business Days, as determined by Landlord with reasonable specificity, shall be
included within Operating Expenses.
(E) Tenant shall have the right to install supplemental air-cooled
air conditioning systems servicing all or part of the Premises which shall
include the right to install louvered vents through the Building wall and facade
to the exterior, at a location and in accordance with a design (taking into
account, inter alia, aesthetic considerations) to be reasonably approved by
Landlord and otherwise in accordance with the terms of Article 4.
Section 24.4 (A) Landlord has advised Tenant that the Heating System and
the A/C System, respectively, have been designed to permit Tenant to obtain from
Landlord the volume, quantity and level of cooled and/or ventilated air meeting
the criteria described on Exhibit D, based on normal office occupancy and
building-standard use of the Premises for the Permitted Use, including the
installation of normal electrical or business equipment therein.
(B) If Tenant uses and/or occupies the Premises other than for the
Permitted Use, and/or alters or improves the Premises other than in accordance
with the approved plans for Tenant's Initial Alterations, and/or installs the
distribution portions of either System so that the Systems cannot operate on an
optimum basis as designed, and/or installs business or electrical equipment in
excess required for normal office occupancy, and/or if Tenant and/or its agents
and employees tampers with, adjusts, or in any way or manner adversely affects
the equipment, machinery and/or mechanical installations comprising each System,
and /or if Tenant fails to comply with Landlord's reasonable written rules and
regulations for the operation of each System, so as to maximize its rating
efficiency and the ability to meeting the performance and criteria set forth on
Exhibit D hereof, respectively, as the case may be, Landlord shall not be
responsible for the improper functioning of any System as provided on Exhibit D,
as a result of any of the foregoing circumstances or failures.
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Section 24.5 Landlord, throughout the Term of this Lease, shall have
unrestricted access to any room located within or adjacent to the Premises, in
which machinery and equipment either (1) comprising the Heating and A/C Systems,
or (2) required to operate the same, is located. Landlord agrees that any such
access shall be undertaken in a manner which minimizes, to the extent reasonably
practicable, any interference with Tenant's business operations in the Premises.
Section 24.6 (A) Landlord reserves the right to stop all or some of the
Building Systems and Building services, including the cleaning and elevator
services, as aforesaid, if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in the
judgment of Landlord, for as long as may be reasonably required by reason
thereof. Landlord agrees however, that at least one (1) elevator (whether
passenger or freight) shall be kept in service at all times during any such
cessation of Building Systems or Building services. Notwithstanding the
foregoing, Landlord shall have no responsibility or liability for interruption,
curtailment or failure to supply and/or operate Heating, A/C, elevator,
electrical, plumbing or other Building Systems when prevented by Unavoidable
Delays or by any Legal Requirement of any Legal Authority or due to the exercise
of its right to stop service as provided in this Article 24, but Landlord hereby
agrees that any such stoppage of Building services or any such repair,
alteration, replacement or improvement work shall be undertaken and/or performed
in a manner which minimizes, to the extent reasonably practicable, any
interference with Tenant's business operations in the Premises.
(B) The exercise of such right or such failure by Landlord shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any compensation or to any abatement or diminution of Rental, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise, except
as is otherwise expressly set forth in Section 25.2 below.
Section 24.7 Landlord agrees that increases in the rates for use of the
freight elevator, Heating System or A/C System during non-Business Hours or on
non-Business Days as set forth on Exhibit J annexed hereto shall be limited to
increases in the actual costs incurred by Landlord.
ARTICLE 25
INABILITY TO PERFORM; INDEPENDENT COVENANTS
Section 25.1 This Lease and the obligations of Tenant to pay Rent
hereunder and perform all of the other terms, covenants and agreements hereunder
on the part of Tenant to be performed shall in no wise be affected, impaired or
excused because Landlord is unable to fulfill any of its obligations under this
Lease, or to supply or is delayed in supplying any service expressly or implied
to be supplied, or is unable to make, or is delayed in supplying any repair,
additions, alterations or decorations, or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of strike or labor troubles or by accident, or by any cause
whatsoever beyond Landlord's reasonable control, including but not limited to,
laws, government preemption in connection with a national emergency or by reason
of any Legal Requirement of any Legal Authority or by reason of the conditions
of supply and demand which have been or are affected by war or other emergency,
or when, in the reasonable business judgment of Landlord, temporary interruption
of such services is necessary by reason of the conditions of supply and demand
which have been or are affected by war or other emergency (collectively,
"Unavoidable Delays").
Section 25.2 (A) Except as is otherwise expressly set forth in Section
25.2(B) below, it is expressly understood that no such inability or delay in
either the performance of obligations or the supply of services on the part of
Landlord to be performed and/or supplied in this Lease provided, as the case may
be, which results from or is due to any of the reasons set forth above in
Section 25.1, or any other reason beyond Landlord's reasonable control, shall
constitute a constructive eviction, and that Landlord shall not be liable to
Tenant in damages, nor shall Tenant
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be entitled to make any claims for or be entitled to any abatement in the
payment of Fixed Rent or additional rent, in the event of such inability or
delay.
(B) Notwithstanding the foregoing provisions of this Article 25 or
other provisions of this Lease, in the event that (i)(a) there shall be an
interruption or suspension of the furnishing or supply of services from Landlord
to Tenant hereunder due to an act or omission of Landlord or its agents,
employees or contractors (expressly excluding acts or omissions of any utility
company servicing the Building) which shall materially impair the operation of
Tenant's business in the Premises and render all or any part of the Premises
inaccessible or untenantable (a "Service Interruption") or (b) the performance
of repairs, alterations, additions or improvements in the Premises or the
Building by Landlord or its agents, employees or contractors shall materially
impair the operation of Tenant's business in the Premises and render all or any
part of the Premises inaccessible or untenantable and such repairs or other work
is not necessitated by the acts or omissions of Tenant or its contractors,
licensees, agents, servants, invitees or employees (a "Work Interruption"), and
(ii) such Service Interruption or Work Interruption, whichever, is applicable,
shall continue in excess of five (5) consecutive Business Days (a Service
Interruption or Work Interruption that satisfies all of the foregoing conditions
being hereinafter referred to as a "Material Interruption"), then, as Tenant's
sole remedy in connection with such Material Interruption, Tenant shall be
entitled to an abatement of Fixed Rent (based upon the rentable square footage
of the Premises which is untenantable or inaccessible as a result of the
Material Interruption) payable pursuant to Article 2 hereof for the period which
shall begin on the sixth (6th) consecutive day of such Material Interruption and
which shall end on the earlier of the day on which (a) such Material
Interruption shall cease or (b) Tenant shall recommence the use of the affected
portion of the Premises for the normal conduct of its business. In the event
that Landlord and Tenant are unable to agree as to the foregoing matters
referred to above in this Section 25.2(B), either party shall have the right to
refer their dispute or disagreement, as to the matter in question, to resolution
by arbitration in accordance with the provisions of Article 34 of this Lease.
ARTICLE 26
BILLS AND NOTICES
Section 26.1 Except as otherwise expressly set forth in this Lease, any
bill, statement, notice, consent, demands, requests or communication (each, as
used in this Lease and in this Article 26, a "notice") which are required to be
given under this Lease shall be in writing and shall be deemed sufficiently
given or rendered if (A) delivered by hand (against a signed receipt), (B) sent
by registered or certified mail (return receipt requested), (C) by nationally
recognized overnight courier, or (D) sent by facsimile transmission with a copy
sent simultaneously by nationally recognized overnight courier, addressed as
follows:
(1) if to Tenant (a) at 114 West 47th Street, New York, New
York 10036 Lease, Attn.: Mr. Richard E. Morgan, Senior Vice President, or
(b) at any place where Tenant or any agent or employee of Tenant may be
found if mailed subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Premises, in each case with a copy to Carter, Ledyard &
Milburn, 2 Wall Street, New York, New York 10005 Attn.: Barbara Block
Brown, Esq.; or
(2) if to Landlord at 2 Sixth Street, Jersey City, New Jersey,
Attn.: Richard S. LeFrak, Esq., and with copies to (x) Howard L. Boris,
Esq., c/o LeFrak Organization, Inc., 97-77 Queens Boulevard, Rego Park,
New York 11374, (y) Sills, Cummis, Radin, Tischman, Epstein & Gross, P.A.,
One Riverfront Plaza, Newark, New Jersey 07102, Attn: Ted Zangari, Esq.,
and (z) each Mortgagee and Lessor which shall have requested same, by
notice given in accordance with the provisions of this Article 25 at the
address designated by such Mortgagee or Lessor;
or to such other addressees as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new addressees) for such purpose by notice given to the other
in accordance with the provisions
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of this Article 26.
Section 26.2 Any such notice shall be deemed to have been rendered or
given on the date when it shall have been hand delivered, three (3) Business
Days from when it shall have been mailed as provided in this Article 26, on the
date of delivery by overnight courier, or if by facsimile transmission, the date
of the confirmed transmission. Anything contained herein to the contrary
notwithstanding, any Operating Statement, Tax Statement or any other bill,
statement, consent, notice, demand, request or other communication from Landlord
to Tenant with respect to any item of Rent (other than any default notice) may
be sent to Tenant by regular United States mail or by facsimile transmission.
Section 26.3 A notice may be given by a party hereto or on such party's
behalf by its attorneys or, in the case of Landlord, by Landlord's managing
agent.
ARTICLE 27
CONSTRUCTION OF LEASE
The following terms shall be construed as follows:
(A) the term "office", or "offices", as used in this Lease, shall
mean the use of the Premises only for the Permitted Use and shall prohibit the
use of the Premises for any use as a store or stores, for any retail use, or for
the sale or display, at any time, of good, wares or merchandise of any kind, or
for any Restricted Use;
(B) the term "Landlord", as used in this Lease, shall mean a
landlord or lessor, and as used in this Lease means only the Landlord, or the
holder of the Mortgagee in possession, for the time being of the Property (or
the Lessor under a Superior Lease of the Building and/or of the Property and the
Building, respectively) of which the Premises is a part, so that in the event of
any sale(s) of the Property and/or the Building or of such Superior Lease,
respectively as the case may be, or in the event of a Superior Lease of the
Building and/or of the Property, respectively as the case may be, the landlord
at the time in question (but not any Guarantor under the Lefrak Guaranty)
automatically shall be entirely freed and relieved of all covenants and
obligations of Landlord hereunder arising after the date of the transfer, and it
shall be deemed and construed without further agreement between the parties or
their successors in interest, or between the parties and the purchaser, at any
such sale, or the Lessor under the Superior Lease of the Building and/or of the
Property and the Building, respectively, that the purchaser or the Lessor under
the Superior Lease of the Building and/or the Property and the Building,
respectively, has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder; provided, however, that if the purchaser
involved in such sale or the transferee of the Landlord's interest,
respectively, shall have agreed with Landlord to assume all of Landlord's
covenants and obligations under this Lease arising prior to the date of such
sale or transfer (the "Assumption"), and a copy of the Assumption is delivered
to Tenant, then Landlord shall be entirely freed and relieved of all covenants
and obligations of Landlord hereunder;
(C) the terms "Landlord shall have no liability to Tenant" or "the
same shall be without liability to Landlord (or Landlord)" or "without incurring
any liability to Tenant therefore", respectively as used in this Lease, shall
mean that Tenant is not entitled to terminate this Lease, or to claim actual or
constructive eviction, partial or total, or to receive any abatement or
diminution in the payment of Rent, or to be relieved in any manner of any of its
other obligations hereunder, or to be compensated for loss or injury suffered,
or to enforce any other right or kind of liability whatsoever against Landlord,
under or with respect to this Lease or with respect to Tenant's use or occupancy
of the Premises;
(D) the term "Tenant", as used in this Lease, shall mean Tenant
herein named or any permitted assignee or other successor in interest (immediate
or remote) of Tenant herein named, which at the time in question is the owner of
Tenant's estate and interest granted by this Lease; but the foregoing provisions
of this subsection shall not be construed to permit any
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assignment of this Lease or to relieve Tenant herein named or any assignee or
other successor in interest (whether immediate or remote) of Tenant herein named
from the full and prompt payment, performance and observance of the covenants,
obligations and conditions to be paid, performed and observed by Tenant under
this Lease;
(E) the term "person", as used in this Lease, shall mean a natural
person or persons, a corporation, a partnership, an association, a joint
venture, an estate, a trust or any other legal entity;
(F) the terms "herein", "hereof" and "hereunder", and words of
similar import, as used in this Lease, shall be construed to refer to this Lease
as a whole, and not to any particular Article or paragraph, unless expressly so
stated;
(G) the term "and/or" when applied to one or more matters or things,
as set forth in this Lease, shall be construed to apply to any one or more or
all thereof as the circumstances warrant at the time in question; and
(H) the terms "re-enter" and "re-entry", as used in this Lease, are
not restricted to their technical legal meanings.
ARTICLE 28
ADJACENT EXCAVATION; SHORING
If an excavation shall be made upon land adjacent to the Property
and the Building, or shall be authorized to be made, respectively, as the case
may be, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the Premises for the purpose of doing such
work as said person shall deem necessary to preserve the wall or the Building
from injury or damage and to support the same by proper foundations, without any
claim for damages or indemnity against Landlord, or diminution or abatement of
Rent hereunder.
ARTICLE 29
RULES AND REGULATIONS
Section 29.1 Tenant and Tenant's servants, employees, agents, visitors,
and licensees shall observe faithfully, and comply strictly with the rules and
regulations as set forth on Exhibit E annexed hereto and made a part hereof, and
such other and further reasonable rules and regulations as Landlord or
Landlord's agent(s) may from time to time adopt (such existing rules and
regulations, as supplemented by any further rules and regulations, as aforesaid,
are collectively called the "Rules and Regulations").
Section 29.2 In case Tenant disputes the reasonableness of any additional
Rule or Regulation hereafter made or adopted by Landlord or Landlord's agents,
the parties hereto agree to submit the question of the reasonableness of such
Rule or Regulation for decision to arbitration as provided in Article 34 hereof.
The right to dispute the reasonableness of any additional Rule or Regulation
upon Tenant's part shall be deemed waived unless the same shall be asserted by
service of a notice in writing upon Landlord within ten (10) days after the
giving of notice thereof.
Section 29.3 Landlord agrees that it shall enforce the Rules and
Regulations uniformly against all tenants of the Building. Landlord shall not be
liable to Tenant for violations of any Rules and Regulations by any other
tenant, its servants, employees, agents, visitors or licensees. No Rules or
Regulations shall increase the amount of Fixed Rent hereunder or increase
Tenant's other monetary obligations or materially reduce Tenant's rights under
this Lease nor shall Tenant be required to comply with any Rules or Regulations
which prevent Tenant from using the Premises for the Permitted Uses hereunder.
In the event of any conflict between the Rules and Regulations and the
provisions of this Lease, the provisions of this Lease shall govern and control.
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ARTICLE 30
SECURITY DEPOSIT
Section 30.1 If, after the date hereof, Tenant (including any successor to
Tenant described in Section 12.12 of this Lease) shall deposit with Landlord a
sum of money as security for the full and faithful performance and due
observance by Tenant of the terms, covenants, agreements, provisions and
conditions of this Lease (the "Security Deposit"), it is agreed that if an Event
of Default shall occur under this Lease, including, but not limited to, the
payment of Fixed Rent and Additional Rent, Landlord may use, apply or retain the
whole or any part of the Security Deposit to the extent required for the payment
of any Fixed Rent and Additional Rent or any other sum as to which Tenant is in
default, hereunder, or for any sum which Landlord may expend or may be required
to expend by reason of such Event of Default, including, but not limited to, any
damages or deficiency in the re- letting of the Premises, whether such damages
or deficiency accrued before or after summary proceedings or other re-entry by
Landlord.
Section 30.2 In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants, agreements and conditions of this
Lease, the Security Deposit shall be returned to Tenant after the Expiration
Date and after delivery of entire possession of the Premises to Landlord in the
manner and within the time period set forth in Article 1 of this Lease.
Section 30.3 In the event of a sale of the Property and/or the Building,
or the leasing of the Property and/or the Building, respectively, as the case
may be, Landlord shall have the right to transfer the then amount of the
Security Deposit to the vendee or lessee in question, and Landlord shall
thereupon be released by Tenant from all liability for the return of such
Security Deposit. Tenant agrees to look solely to the new Landlord for the
return of the Security Deposit; it being agreed and understood that the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new Landlord hereunder.
Section 30.4 Tenant covenants that it will not assign or encumber or
attempt to assign or encumber the Security Deposit, and that neither Landlord,
nor its successors or assigns, shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 31
BROKER
Section 31.1 (A) Each party represents and warrants to the other that it
has not dealt with any broker or other person in connection with this Lease
except as set forth in this Article 31.
(B) Landlord's exclusive rental agent for the Building and its
broker for this Lease, whom Tenant recognizes as Landlord's exclusive rental
agent and broker, is Cushman & Wakefield, Inc. and Cushman & Wakefield of New
Jersey, Inc. (collectively, "C&W"), and Landlord shall pay C&W its commission
pursuant to separate agreement.
(C) Tenant represents that it has engaged and dealt with Julien J.
Studley, Inc. and its Vice Chairman, Mr. Donald Schnabel, as its broker for this
Lease (the "Tenant's Broker"), whom Landlord recognizes as the Tenant's Broker,
and Landlord shall pay Tenant's Broker its commission pursuant to separate
agreement.
(D) The execution and delivery of this Lease by each party shall be
conclusive evidence that such party has relied upon the foregoing representation
and warranty.
Section 31.2 (A) Tenant shall indemnify and hold Landlord harmless from
and against any and all claims for commission, fee or other compensation by any
person (other than C&W and Tenant's Broker) who shall claim to have dealt with
Tenant in connection with this Lease and for any and all costs incurred by
Landlord in connection with such claims, including, without
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limitation, reasonable attorneys' fees and disbursements.
(B) Landlord shall indemnify and hold Tenant harmless from and
against any and all claims for commission, fee or other compensation by any
person (including C&W and Tenant's Broker) who shall claim to have dealt with
Landlord in connection with this Lease and for any and all costs incurred by
Tenant in connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements.
Section 31.3 The provisions of this Article 31 shall survive the
Expiration Date.
ARTICLE 32
CONSENTS
Wherever it is specifically provided in this Lease that a party's
consent is not to be unreasonably withheld, a response to a request for such
consent shall also not be unreasonably delayed. If either Landlord or Tenant
considers that the other has unreasonably withheld or delayed a response, it
shall so notify the other party within ten (10) days after receipt of such
response, or, in case such response is not received, within twenty (20) days
after making its request for the response. Tenant hereby waives any claim for
damages against Landlord which it may have based upon any assertion that
Landlord has unreasonably withheld or unreasonably delayed any such consent.
Tenant agrees that its sole remedy in any such case shall be an action or
proceeding to enforce the relevant provision of this Lease by specific
performance, injunction or declaratory judgment. Notwithstanding anything to the
contrary provided in this Lease, in any instance where the consent of the Lessor
and/or the Mortgagee is required, Landlord shall not be required to give its
consent until and unless such Lessor or Mortgagee has given its consent.
Landlord agrees to seek the consent of such Lessor and/or Mortgagee if Landlord
would otherwise consent in such instance.
ARTICLE 33
ESTOPPEL CERTIFICATES
Section 33.1 (A) From time to time during the Term, within fourteen (14)
days following receipt by Tenant of Landlord's request therefor, Tenant shall
deliver to Landlord or its designee, which may include, but not be limited to, a
purchaser of the Land and/or the Building, a Mortgagee or Lessor, respectively,
at no cost or expense to Landlord, a written statement executed and acknowledged
by Tenant, in form satisfactory to Landlord stating: (1) that this Lease is then
in full force and effect and has not been modified (or if modified, setting
forth all such modifications); (2) the date to which the Fixed Rent, and
Additional Rent and other items of Rent hereunder have been paid, together with
the amount of the monthly Fixed Rent then payable; (3) whether or not, to the
best knowledge of Tenant, Landlord is in default hereunder, and setting forth
the specific nature of all such defaults, if any; (4) the amount (or remaining
balance) of the Security Deposit, if any, under this Lease; (5) whether there
are any subleases affecting the Premises; (6) the address to which all notices
and communications to Tenant under the Lease are to be sent; (7) the status of
Landlord's obligations under Section 1.1 and Article 36 of this Lease in
reasonable specificity; and (8) any other matters reasonably requested by
Landlord and related to this Lease.
(B) Tenant acknowledges that any statement delivered pursuant to
this Article 33 may be relied upon by any purchaser or landlord of the Land
and/or the Building, or Landlord's interest in the Land and/or the Building
and/or by any Lessor or by any Mortgagee, or by any assignee of a Mortgagee or
Lessor, respectively, as the case may be.
Section 33.2 From time to time, within fourteen (14) days next following
receipt by Landlord of Tenant's request therefor, Landlord shall deliver to
Tenant at no cost or expense to Tenant, a written statement executed and
acknowledged by Landlord, in form satisfactory to Tenant stating: (A) that this
Lease is then in full force and effect and has not been modified (or
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if modified, setting forth all modifications); (B) the date to which the Fixed
Rent, all Additional Rent and any other items of Rent hereunder have been paid,
together with the amount of the monthly Fixed Rent then payable; (C) whether or
not, to the best knowledge of Landlord, Tenant is in default under this Lease,
and, if Tenant is in default, setting forth the specific nature of all such
defaults, if any; (D) the amount (or remaining balance) of the Security Deposit,
if any, under this Lease; and (E) any other matters reasonably requested by
Tenant and related to this Lease.
ARTICLE 34
ARBITRATION
Section 34.1 Either party may request arbitration in accordance with this
Article 34 of any provision of this Lease in dispute wherein arbitration is
expressly stated in such provision as the appropriate remedy for such dispute,
except however, for any arbitration of matters in dispute with respect to the
determination of Fair Market Value, which arbitration shall be conducted in
accordance with the provisions of Section 2.7(B) of this Lease. The party
requesting arbitration shall do so by giving notice to that effect to the other
party, specifying in said notice the name and address of the person designated
to act as an arbitrator on its behalf.
Section 34.2 Within fifteen (15) days after the service of such notice,
the other party shall give notice to the first party specifying the name and
address of the person designated to act as an arbitrator on its behalf. If the
second party fails to notify the first party of the appointment of its
arbitrator within the aforesaid time period, then subject to the provisions of
Section 34.5, the appointment of the second arbitrator shall be made in the same
manner as hereinafter provided for the appointment of a third arbitrator in a
case where the two arbitrators appointed hereunder and the parties are unable to
agree upon such appointment.
Section 34.3 The two arbitrators so chosen shall meet within ten (10) days
after the second arbitrator is appointed, and shall conduct such hearings and
investigations as they may deem appropriate. If within thirty (30) days after
the second arbitrator is appointed, the two (2) arbitrators shall not agree upon
the question in dispute, they shall together appoint a third arbitrator. In the
event the two arbitrators are unable to agree upon such appointment within forty
(40) days after the appointment of the second arbitrator, the third arbitrator
shall be selected by the parties themselves if they can agree to such selection
within a further period of ten (10) days. If the parties do not so agree, then
either party, on behalf of both and on notice to the other, may request such
appointment by the American Arbitration Association (or any successor
organization thereto) in accordance with its commercial arbitration rules then
prevailing, or if the American Arbitration Association (or such successor
organization) shall fail to appoint said third arbitrator within fifteen (15)
days after such request is made, then either party may apply, on notice to the
other, to the Supreme Court of the State of New Jersey (or any other court
having jurisdiction and exercising functions similar to those now exercised by
said court) for the appointment of such third arbitrator.
Section 34.4 The third arbitrator shall conduct such hearings and
investigations as he may deem appropriate and, within thirty (30) days of this
designation, render an independent decision of the matter in dispute, which
decision shall be conclusive and binding upon the parties. Each arbitrator
chosen or appointed pursuant to this Article 34 shall be a disinterested person
having at least ten (10) years real estate experience as an arbitrator in the
particular matter in dispute.
Section 34.5 If Tenant gives notice requesting arbitration, Tenant shall
simultaneously serve a duplicate of the first notice on the Mortgagee and each
Lessor. If Landlord fails to appoint an arbitrator within fifteen (15) days
after the giving of the first notice by Tenant, such Mortgagee or Lessor shall
have an additional period of ten (10) days within which to appoint the second
arbitrator, who shall thereupon be recognized in all respects as if he had been
appointed by Landlord.
Section 34.6 The arbitration shall be conducted, to the extent consistent
with this Article
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34, in the State of New Jersey, in either Bergen, Hudson or Essex Counties, in
accordance with the commercial arbitration rules then prevailing of the American
Arbitration Association (or any successor organization thereto). Such decision
shall be in writing and counterpart copies thereof shall be delivered to each of
the parties. In rendering such decision and award, the arbitrator(s) shall not
add to, subtract from, or otherwise modify the provisions of this Lease.
Section 34.7 If for any reason whatsoever the written decision and award
of the arbitrator(s) shall not be rendered within the time periods specified in
this Article 34, then at any time thereafter, either party may apply to the
Supreme Court of the State of New Jersey, or to any other court having
jurisdiction and exercising the functions similar to those now exercised by such
Court, by action, proceeding, or otherwise (but not by a new arbitration
proceeding) as may be proper to determine the question in dispute consistently
with the provisions of this Lease. Each party shall pay the fees and expenses of
the arbitrator appointed by or for such party. The fees and expenses of the
third arbitrator (if appointed), and all other expenses of the arbitration shall
be borne by the parties equally.
ARTICLE 35
INTENTIONALLY DELETED PRIOR TO LEASE EXECUTION
ARTICLE 36
LANDLORD'S PERFORMANCE OF THE LANDLORD'S WORK; TENANT'S
PERFORMANCE OF THE TENANT'S INITIAL ALTERATIONS AND LANDLORD'S
PAYMENT OF LANDLORD'S CONTRIBUTION TOWARDS SUCH TENANT WORK
Section 36.1 (A) Landlord and/or its contractor(s) shall perform, or cause
the performance of all work, and shall install or cause to be installed all of
the material, supplies, machinery, equipment and infra-structure required for
the construction and "substantial completion" (as defined in Section 36.8 below)
of the Building in accordance with those certain plans and specifications
thereof (collectively, the "Building Plans"), which Building Plans are also more
particularly set forth on Schedule 1 annexed hereto and made a part hereof (the
"Building Plans Work").
(B) In addition, Landlord and/or its contractors shall perform or
cause the performance of, and shall install or cause the installation in the
Building and the Premises of that certain work, materials, equipment, machinery
and/or improvements more particularly set forth on Schedule 2 annexed hereto and
made a part hereof (the "Base Building Work").
(C) The Building Plans Work and the Base Building Work are
collectively called the "Landlord's Work". Each phase of the Base Building Work
consisting of Phase 1 Base Building Work and Phase 2 Base Building Work (as
described in Schedule 2) is called a "Phase".
Section 36.2 Provided this Lease shall then be in full force and effect
and no Event of Default shall have occurred hereunder, Landlord agrees to
commence, or cause the commencement of the performance of the Landlord's Work
promptly after receipt by Landlord of all required permits and/or approvals from
the Buildings Department or any other applicable Legal Authority allowing for
the commencement and performance of the Landlord's Work. Landlord furthers
agrees to expeditiously perform, or cause the Landlord's Work to be
expeditiously performed to "substantial completion" in a Building-standard
manner, as soon as is reasonably practicable after the occurrence of the
aforementioned events. In the event the Phase 2 Base Building Work is not
"substantially completed" such that Tenant cannot obtain a Certificate of
Occupancy for the Premises by the Rent Commencement Date (and not as a result of
Tenant Delays) then for each day beyond the Rent Commencement Date that such
Certificate of Occupancy cannot be obtained as a result of Landlord's failure to
"substantially complete" the Phase 2 Base Building Work and not as a result of
any Tenant Delays, Tenant shall receive a day-
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for-day postponement of the Rent Commencement Date.
Section 36.3 In connection with Landlord's performance of the Landlord's
Work, Tenant hereby acknowledges and agrees that:
(A) Landlord shall have the right to perform or cause the
performance of the Landlord's Work by itself or by any contractor(s) or
subcontractor(s) selected by Landlord (including, but not limited to, any
affiliate(s) of Landlord);
(B) Landlord shall have the right to use, in the performance of the
Landlord's Work, facilities, materials, equipment and supplies of a
manufacturer, design, capacity, finish and color of the standard adopted by
Landlord for the Building or as provided or specified by the Building Plans,
provided, however, if such facilities, materials, equipment and supplies, as
required or as specified by the Building Plans are not then available, Landlord
shall have the right to substitute the same with like type items and items of
approximately the same cost as the unavailable facility, material, equipment or
supply; and
(C) Landlord shall be permitted to take all materials and equipment
into and upon the Premises that may be required for the performance of any
portion of the Landlord's Work, respectively, without the same constituting an
eviction or constructive eviction of Tenant, in whole or in part.
Section 36.4 (A) Unless Landlord or its contractor(s) or subcontractor(s)
shall otherwise elect, Landlord and its contractor(s) shall be required to
perform all Landlord's Work only during Business Hours of Business Days.
(B) Tenant may perform its Tenant's Initial Alterations during the
Phase 1 Base Building Work, provided that such Tenant's Initial Alterations do
not interfere with the performance by Landlord or its contractor(s) of the Phase
1 Base Building Work. Accordingly, Tenant, Landlord and their respective agents,
employees and contractors, shall cooperate and avoid any interference (at
Landlord's direction) with the other respective contractors, laborers, material
suppliers and other parties performing such completion of the Landlord's Base
Building Work and Tenant's Initial Alterations, respectively, in order to ensure
the timely and efficient completion of the Landlord's Base Building Work and
Tenant's Initial Alterations and the avoidance of any unnecessary delays.
(C) Landlord shall use commercially reasonable efforts to perform
and complete its Phase 2 Base Building Work so as not to interfere with the
Tenant's steady progress of completing its Tenant's Initial Alterations.
Section 36.5 (A) On the date of "substantial completion" of the Phase l
Base Building Work and on the date of "substantial completion" of the Phase 2
Base Building Work, respectively, Landlord shall provide Tenant with a written
notice thereof by facsimile transmission (each, a "Substantial Completion of
Work Notice"), each of which Substantial Completion of Work Notices shall
include the date (the "Substantial Completion Date") on which Landlord shall
have "substantially completed" each Phase of the Base Building Work,
respectively, as hereinafter provided. Each notice shall be accompanied by a
letter from Landlord's architect (who may be an in-house architect) certifying
"substantial completion" of the particular Phase of Base Building Work. In the
event that Tenant disputes that the work performed by Landlord and/or its
contractors in either Phase has not been "substantially completed", Tenant shall
notify Landlord of such dispute within ten (10) days after the date of the
particular Substantial Completion of Work Notice for such Phase of the work, and
the parties will promptly submit such dispute to expedited arbitration pursuant
to Article 34. If it is determined by arbitration that the Phase 1 Base Building
Work was not "substantially completed" by the date set forth in the applicable
Substantial
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Completion of Work Notice, then the Commencement Date shall be deemed to be the
date on which the Phase 1 Base Building Work is determined to be substantially
completed by the arbitrators. If it is determined by arbitration that the Phase
2 Base Building Work was not "substantially completed" by the date set forth in
the applicable Substantial Completion of Work Notice, then the Rent Commencement
Date shall be deemed to be the date on which the Phase 2 Base Building Work is
determined to be substantially completed by the arbitrators, but in no event
earlier than one hundred and eighty (180) days after the Commencement Date.
Landlord shall also provide Tenant with a good faith estimate of the anticipated
date of "substantial completion" of the Phase 1 Base Building Work at least
sixty (60) days prior to such anticipated date.
(B) Landlord shall be deemed to have performed all of its
obligations with regard to "substantial completion" of the Building Plans Work
and the Base Building Work, respectively, as of delivery of the Substantial
Completion of Work Notice for the Phase 2 Base Building Work, and Tenant's
taking of possession of the Premises for its use and/or occupancy at such time
shall be deemed conclusive evidence as against Tenant that, as of the
Substantial Completion Date for the Phase 2 Base Building Work, the Premises,
the Building and the Property were in good and satisfactory condition and that
all Landlord's Work was substantially completed, unless within thirty (30) days
after the Phase 2 Base Building Work has been substantially completed, Tenant
shall give written notice to Landlord (the "Tenant's Repair Notice") specifying
the respects in which Landlord or its contractor(s) has not performed any of its
obligations hereunder with respect to Landlord's Work. Notwithstanding the
foregoing, Tenant shall have nine (9) months from the Rent Commencement Date to
provide a Tenant's Repair Notice with respect to any latent defects in the
Premises.
(C) Landlord shall, with due diligence and dispatch and as promptly
as is reasonably practicable after receipt of the Tenant's Repair Notice, repair
or cause the repair of any defective portion(s) of the Landlord's Work and shall
fully complete any incomplete or defective portion of the Landlord's Work during
Business Hours on Business Days and with contractor(s) selected by Landlord. In
no event shall Landlord be liable or obligated to incur any overtime charges or
overtime expenses regarding the performance of such repair work and/or
completion work; provided, however, that if such defect in, or incomplete
portion of the Landlord's Work unreasonably and materially interfere with
Tenant's normal use and occupancy of the Premises for the Permitted Use,
Landlord hereby agrees to perform, or cause the performance of, such repair or
completion work at times other than during Business Hours of Business Days
utilizing, if necessary, overtime services of Landlord's contractor(s). Further,
Landlord agrees to cure and/or remove of record any violations filed against or
existing as to the Landlord's Work (except, however, for those which have been
caused by Tenant's Work contractor(s)) if Tenant is unable to obtain any permits
or approvals for the performance of its Initial Alterations or is otherwise
unable to occupy the Premises for the Permitted Use, and Tenant has so advised
Landlord of this fact, in writing.
Section 36.6 Tenant hereby waives the provisions of any present or future
law statute or Legal Requirement which provide additional rights and remedies
Tenant hereby agreeing that the provisions of this Article 36 are in lieu
thereof and shall govern and control to the maximum extent legally permissible.
Section 36.7 Landlord represents that the Building shall be constructed
and the Building and Property shall be maintained in accordance with the terms
and conditions of the Newport Development Project Phase II Construction
Activities Remedial Plan, dated August 1995, and shall be maintained in
accordance with the terms and conditions of the Newport Development Project
Phase III Post Construction Remedial Plan, dated July 1995, both prepared for
the Jersey City Redevelopment Agency by Dresdner Robin Environmental Management,
Inc., and as the same may further modified, supplemented, amended or replaced
(collectively, the "Newport Remedial Plan"). Tenant acknowledges that it has
received a copy of the Newport Remedial Plan. In addition, Landlord shall use
commercially reasonable efforts to have the Building comply with "Y2K"
requirements.
Section 36.8 For purposes of this Lease, the terms "substantial
completion", "substantially complete" or "substantially completed" shall mean,
in the case of:
(A) the Building Plans Work, that the Building Plans Work, or
portions thereof
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shall have been completed substantially in accordance with the Building Plans
listed on Schedule 1 and all Legal Requirements with respect to such items of
work, including the completion of the construction of the Building's steel
framework, facade, entryway, lobby area and roof, the installation of all
outside windows, the installation of all Building Systems in operating condition
ready to service the Premises, except, however, for (1) minor finishing, details
of construction, decoration, mechanical adjustment or work, touch-ups and
adjustments to the Base Plans Work which do not materially interfere with
Tenant's ability to enter the Building and utilize the lobby and elevators for
reasonable access, ingress and egress to and from the Premises and to perform
the Tenant's Initial Alterations in the Premises, and (2) the performance of any
base premises or other improvement work in other tenants' premises in the
Building, and
(B) each Phase of the Base Building Work, that such Phase of the
Base Building Work, or portions thereof, shall have been completed substantially
in accordance with Schedule 2 and all Legal Requirements with respect to such
items of work, except, however, for minor finishing, details of construction,
decoration, mechanical adjustment or work, touch-ups and adjustments which do
not materially interfere with Tenant's ability to enter the Building and the
Premises and utilize the outside sidewalks, the Building's lobby and elevators
for reasonable access, ingress and egress to and from the Premises in order to
(i) with respect to the Phase 1 Base Building Work, commence the performance
and/or to perform any of Tenant's Initial Alterations and (ii) with respect to
the Phase 2 Base Building Work, otherwise use and/or occupy the Premises for the
purposes as set forth in this Lease.
Section 36.9 (A) Subject to Landlord's performance of Landlord's Work,
Tenant shall accept possession of the Premises in the condition which shall
exist on the Commencement Date "as is". Tenant hereby acknowledges and agrees
that Landlord shall have no responsibility or obligation to (1) perform or cause
to be performed any work, (2) supply any materials, (3) incur any expenses, (4)
make any installations, (5) assist Tenant in the preparation of Tenant's plans
for the performance of the Tenant's Initial Alterations (the "Final Tenant's
Plans") or to assist Tenant in filing the same with the Buildings Department
and/or any other Legal Authorities in order to obtain all other necessary
approvals and/or permits required by Tenant to prepare the Premises for Tenant's
use and occupancy (but Landlord hereby agrees to reasonably cooperate with
Tenant in the signing of any necessary documents required to obtain the same,
provided, however, Landlord incurs no liability, fee, cost or expense, and/or
(6) to obtain any Buildings Department and/or any other governmental approvals
and/or permits in order to prepare the Premises for Tenant's use and occupancy,
except, however, Landlord shall perform and substantially complete the
Landlord's Work, as hereinabove provided, and shall make payment to Tenant of
the "Landlord's Contribution" (as defined in clause (B) below) as hereinafter
provided. Notwithstanding anything to the contrary herein contained, Landlord
shall be obligated to cure any violation in the Base Building Work and/or
perform any other work for which Landlord is responsible under the terms of the
Lease in the event Tenant would be unable to obtain any necessary approvals or
permits as a result of the existence of such violations or the non-performance
of such work.
(B) (1) Landlord hereby agrees to contribute up to the sum of
$3,476,962.50 (the "Landlord's Contribution") towards the cost (including "hard"
and "soft" costs) of Tenant's renovation, alteration and improvement work in the
Premises comprising the Tenant's Initial Alterations, as shown on the Final
Tenant's Plans, and the cost of Tenant's installation in the Premises, as part
of such Tenant's Initial Alterations.
(2) All of Tenant's Initial Alterations shall be deemed to be
Alterations and shall be performed in accordance with all of the terms and
provisions of this Lease, including but not limited to, Article 4. Tenant shall
have the right to bid the performance of the Tenant's Initial Alterations in
accordance with Final Tenant's Plans, supervise the construction, and subject to
Landlord's reasonable approval, select the contractor(s) and subcontractor(s)
who will perform the Tenant's Initial Alterations. It is agreed and understood
by Tenant that (a) Landlord's contractor(s) shall have the right to bid the
performance of the Tenant's Initial Alterations, and (b) subject to Section 4.7,
Tenant shall reimburse Landlord for its reasonable expenses incurred in
connection with (i) the review and approval of the Final Tenant's Plans and (ii)
the performance
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of Tenant's Initial Alterations.
(3) Landlord shall disburse Landlord's Contribution to Tenant,
or at Tenant's direction to Tenant's contractor(s), as the case may be, in
installments (to be paid by Landlord not more than once a month), such
installments to be paid, as aforesaid, within thirty (30) days following receipt
by Landlord of:
(a) a request for payment of Landlord's Contribution
from Tenant;
(b) Tenant's or its contractor(s)' respective invoices
for all work done and all supplies furnished in
connection with such portion of Tenant's Initial
Alterations for which payment is being requested, or
receipted bills evidencing the expenditure of monies
equal to such portion of Landlord's Contribution for
which payment is being requested;
(c) a detailed breakdown of the aggregate cost of all of
Tenant's Initial Alterations completed to date;
(d) affidavits(s) of payment for the most recently
completed portion of Tenant's Initial Alterations
executed by Mr. Richard E. Morgan, Senior Vice President
of United States Trust Company of New York, or any other
authorized officer of Tenant;
(e) certificates (i) from Tenant's architect, and (ii)
if readily obtainable by Tenant after the exercise by
Tenant of commercially reasonable efforts, from
contractor(s) who have performed such portion of the
Tenant's Initial Alterations, stating that (X) such
portion of Tenant's Initial Alterations has been fully
completed and (Y) such portion of Tenant's Initial
Alterations was prosecuted substantially in accordance
with the Final Tenant's Plans; and
(f) lien waivers from each contractor(s) or
subcontractor(s) to the extent of the amount to be paid
to such parties, which waivers may contain a condition
that the effectiveness of such waivers shall be subject
to the payment to the applicable contractor(s) or
subcontractor(s) of the amount of the invoice
accompanying such waiver.
(4) If Landlord does not pay any portion of Landlord's
Contribution, Tenant may, at Tenant's option, apply any unpaid amount as a
credit toward Tenant's rental obligations under this Lease. Upon the
disbursement of the entire Landlord's Contribution, Landlord shall have no
further obligation or liability whatsoever to Tenant for further disbursement of
any portion of Landlord's Contribution to Tenant. It is expressly understood and
agreed that Tenant shall complete, at its sole cost and expense, the Tenant's
Initial Alterations, whether or not Landlord's Contribution is sufficient to
fund such completion. If the actual cost of the Tenant's Initial Alterations
shall be in excess of the amount of Landlord's Contribution, then the entire
amount of such excess cost shall be paid solely by Tenant and Landlord shall be
under no obligation to pay any such excess.
(5) Notwithstanding anything to the contrary contained in this
Lease, Tenant hereby agrees that all of Tenant's Initial Alterations shall be
deemed at all times during the Term to be the property of Landlord and not of
Tenant, and shall, subject to ordinary wear and tear and damage by casualty,
remain upon and be surrendered by Tenant with the Premises upon the Fixed
Expiration Date or earlier termination of this Lease, and that Tenant shall not
remove any of such Alterations from the Premises unless Landlord shall permit or
direct Tenant, in writing, to remove any of such Tenant Initial Alterations, in
accordance with Section 4.6 hereof.
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(6) Within thirty (30) days after completion of Tenant's
Initial Alterations, subject to the last sentence of this Section 36.9(B)(6),
Tenant shall deliver to Landlord general releases and waivers of lien from all
contractors, subcontractors and materialmen involved in the performance of
Tenant's Initial Alterations and the materials furnished in connection therewith
(unless the same were previously furnished pursuant to subdivision (3) above),
and a certificate from Tenant's independent licensed architect certifying that
in its opinion Tenant's Initial Alterations have been performed in a good and
workerlike manner and substantially completed in accordance with the Final
Tenant's Plans, accompanied by three (3) sets of "as-built" plans for Tenant's
Initial Alterations. In the event that Tenant shall be unable to obtain a
general release and/or waivers of lien because of a dispute between Tenant and
any of its contractors, subcontractors and/or materialmen, and a lien shall be
filed against the Premises or the Building, Tenant shall bond the disputed
amount as provided in Section 4.5.
ARTICLE 37
MISCELLANEOUS
Section 37.1 As a further inducement to Landlord to enter into this Lease
with Tenant, Tenant hereby agrees that with respect to the service of a notice
upon Tenant by Landlord in any proceeding commenced by Landlord against Tenant
under the property laws of the State of New Jersey, to the fullest extent
legally permissible, service of such notice in any such proceeding shall be
effective if made upon Tenant as provided in Article 26.
Section 37.2 This Lease shall be deemed to have been jointly prepared by
both of the parties hereto, and any ambiguities or uncertainties herein shall
not be construed for or against either of them. Further, Landlord and Tenant
agree that this Lease incorporates the full agreement between the parties and
that all prior drafts of this document irrelevant and superceded by this Lease.
Section 37.3 All understandings and agreements heretofore made between the
parties hereto are merged in this Lease, which alone fully and completely
expresses the agreement between Landlord and Tenant, and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of this Lease in whole or in part, unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
Section 37.4 The captions in this Lease are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Lease nor the intent of any provision thereof.
Section 37.5 If Tenant is a partnership (or is comprised of two (2) or
more persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two (2) or more
persons, individually and as co-partners of a partnership) pursuant to Article
12 (any such partnership and such persons are called, in this Section 37.5, the
"Partnership Tenant"), the following provisions shall apply to such Partnership
Tenant: (A) the liability of each of the parties comprising Partnership Tenant
shall be joint and several; (B) each of the parties comprising Partnership
Tenant hereby consents in advance to, and agrees to be bound by (1) any written
instrument which may hereafter be executed, changing, modifying or discharging
this Lease, in whole or in part, or surrendering all or any part of the Premises
to Landlord, (2) any notices, demands, requests or other communications which
may hereafter be given by Partnership Tenant or by any of the parties comprising
Partnership Tenant, and (3) any bills, statements, notices, demands, requests or
other communications given or rendered to Partnership Tenant or any of the
parties comprising Partnership Tenant; (C) if Partnership Tenant shall admit new
partners, all of such new partners shall, by their admission to Partnership
Tenant, be deemed to have assumed performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed; and (D)
Partnership Tenant shall give prompt notice to Landlord of the admission of any
such new partners, and upon
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demand Landlord, shall cause each such new partner to execute and deliver to
Landlord an agreement, in form satisfactory to Landlord, wherein each such new
partner shall assume performance of all the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new partner to
execute or deliver any such agreement to Landlord shall vitiate the provisions
of subsections (A), (B) and (C) of this Section 37.5.
Section 37.6 In no event may Tenant record this Lease and any such
recordation shall be deemed an Event of Default hereunder. However, after the
Commencement Date either party may elect to record a memorandum in the form
attached hereto as Exhibit F, in which event the other party shall join in the
execution of such memorandum. Landlord shall prepare such memorandum. The
requesting party shall pay all such costs of recordation. Upon the expiration or
early termination of this Lease, Tenant shall execute a Termination of Lease in
recordable form, which obligation shall survive the expiration or termination of
this Lease.
Section 37.7 If any provisions of this Lease or portion of such provision
or the application thereof to any person or circumstance is for any reason held
invalid or unenforceable, the remainder of the Lease (including the remainder of
such provisions) and the application thereof to the persons or circumstances
shall not be affected thereby.
Section 37.8 Landlord and Tenant hereby agree that TIME SHALL BE DEEMED OF
THE ESSENCE as to the observance, performance and/or enforcement of the terms
and provisions of this Lease.
Section 37.9 This Lease shall be governed and construed in accordance with
the laws of the State of New Jersey, without giving effect to the principles of
conflicts of laws.
Section 37.10 (A) Each person executing this Lease on behalf of Tenant
hereby covenants, represents and warrants that Tenant is a duly incorporated or
duly qualified corporation and is authorized to do business in the State of New
Jersey, and that each person executing this Lease on behalf of Tenant is an
officer of such corporate Tenant, and that he is duly authorized to execute,
acknowledge and deliver this Lease to Landlord.
(B) Each person executing this Lease on behalf of the corporate
member of Landlord hereby covenants, represents and warrants that (1) Landlord
is a duly qualified limited liability company, and that the corporate member of
Landlord is a duly incorporated corporation and each entity is authorized to do
business in the State of New Jersey, and (2) each person executing this Lease on
behalf of the corporate member of Landlord is an officer of such corporate
member of Landlord and that he is duly authorized to execute, acknowledge and
deliver this Lease on behalf of Landlord to Tenant.
Section 37.11 This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of this Lease
to Tenant.
Section 37.12 If more than one person executes this Lease as Tenant, each
of them understands and hereby agrees that the obligations of each of them under
this Lease are and shall be joint and several, that the term "Tenant", as used
in this Lease, shall in such event mean and include each of them jointly and
severally, and that the act of or notice from, or notice or refund to, or the
signature of, any one or more of them, with respect to the tenancy of this Lease
(including without limitation, any renewal, extension, expiration, termination
or modification of this Lease) shall be binding upon each and all of the persons
executing this Lease as Tenant, with the same force and effect as if each and
all of them had so acted or so given or received such notice or refund or so
signed.
Section 37.13 The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this Lease, their assigns.
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ARTICLE 38
TENANT'S NON-EXCLUSIVE RIGHT TO INSTALL AN ANTENNA
ON A PORTION OF THE BUILDING'S ROOF AND TO USE A PORTION
OF THE BUILDING OUTSIDE AREA FOR THE INSTALLATION OF A STANDBY
GENERATOR WITH ASSOCIATED EQUIPMENT FOR THE SUPPLY OF
UNINTERRUPTED POWER SUPPLY
"UPS" TO THE PREMISES
Section 38.1 (A) Tenant shall have the non-exclusive right to install an
"Antenna" (as such term is defined in Exhibit G annexed hereto) on the roof of
the Building, for use in connection with Tenant's business operations to be
conducted in the Premises as part of the Permitted Uses (the "Antenna
Installation"), provided that, and so long as (A) Tenant shall then be using the
Premises for the Permitted Use, (B) no Event of Default shall then have
occurred, and (C) (1) where the antenna is a dish antenna, Tenant shall pay
Landlord, as Additional Rent, an annual license fee in the amount of $3,000 per
foot of the diameter of such dish, in equal monthly installments of $250 per
diameter foot, at the time of Tenant's payment to Landlord of Fixed Rent
hereunder, and (2) where the antenna is a "whip" antenna or other small, similar
antenna, an annual license fee of One Dollar ($1) per annum payable on the Rent
Commencement Date and on each anniversary thereof.
(B) (1) Tenant shall have the right to install a stand-by generator,
together with associated equipment therefor, required for the supply of
uninterrupted power supply ("UPS") to the Premises (collectively, the "UPS
Generator") in the general location on the side of the Building as more
particularly shown by the designation "Tenant Generator" on Exhibit A-3 annexed
hereto and made a part hereof, consisting of an area not to exceed the size that
is necessary to install two (2) 800kW generators each having a normal size day
tank. The location of the UPS Generator is called the "Generator Location".
Tenant shall have the right to connect the UPS Generator to Landlord's cooling
tower and auxiliary equipment located on the roof of the Building so that Tenant
shall be able to provide to air conditioning to the Premises in the event that a
power failure occurs.
(2) Tenant shall have the right to use the Generator Location
provided that, and so long as (a) Tenant shall then be using the Premises for
the Permitted Use, (b) no Event of Default shall then have occurred, and (c)
Tenant shall pay Landlord, as Additional Rent, an annual license fee in the
amount of One Dollar ($1) per annum payable on the Rent Commencement Date and on
each anniversary thereof.
Section 38.2 (A) The specific terms and conditions governing the
installation and operation of the Antenna Installation are set forth on Exhibit
G annexed hereto and hereby made a part hereof. Other than as set forth on
Exhibit G, the Antenna Installation shall be governed by all of the terms,
provisions and conditions of this Lease.
(B) The specific terms and conditions governing the use of the
Generator Location are set forth on Exhibit G-1 annexed hereto and hereby made a
part hereof. Other than as set forth on Exhibit G-1, the use of the Generator
Location shall be governed by all of the terms, provisions and conditions of
this Lease.
ARTICLE 39
TENANT'S OPTION TO EXPAND THE PREMISES
Section 39.1 (A) Provided that the conditions set forth in Section 39.2
hereof are satisfied, Landlord shall make available for leasing to Tenant, and
Tenant shall have the option (the "Option") to lease from Landlord (1) the
entire ninth (9th) floor of the Building (the "First Option Space"); and/or (2)
on the "Availability Date" (as hereinafter defined) which is between the ninth
(9th) and eleventh (11th) "Lease Year(s)" (as hereinafter defined) of the Term
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(the "Second Option Space Availability Period"), one (1) additional floor of the
Building above the first floor (the "Second Option Space"); each of the Spaces
referred to in subsections (1) and (2) are individually and collectively
referred to as the "Option Space"), for a term commencing, as to the First
Option Space, on the Commencement Date or, as to the Second Option Space, on the
Availability Date (the "Second Option Space Commencement Date"), as the case may
be, and expiring, in each case, on the Expiration Date. The term "Lease Year(s)"
shall mean the twelve (12) month period commencing on the Rent Commencement Date
and each succeeding twelve (12) month period thereafter. Attached hereto as
Exhibit K is a schedule showing the rentable square feet contained in each floor
of the Building above the first floor.
(B) (1) In the case of the First Option Space, Tenant may elect to
lease the First Option Space by giving Landlord written notice of such election
(the "First Option Notice"), on or before December 31, 1998. Notwithstanding the
foregoing, in the event that Landlord, between November 15, 1998 and December
31, 1998 receives a proposal from a third party to lease the ninth (9th) floor
of the Building, Landlord shall give Tenant notice of such proposal and Tenant
shall have ten (10) days from its receipt of such notice to deliver to Landlord
the First Option Notice, TIME BEING OF THE ESSENCE.
(2) In the case of the Second Option Space, and provided that
Tenant shall have delivered a notice to Landlord on or before September 30, 2007
of Tenant's desire to lease an additional floor, Landlord shall forward a
written notice to Tenant, by no earlier than eighteen (18) months nor later than
twelve (12) months prior to the commencement of the Second Option Space
Availability Period (such notice is called the "Availability Notice"), which
Availability Notice shall specify: (a) the expected date of availability of the
Second Option Space (the "Availability Date"); (b) the floor of the Building on
which the Second Option Space shall be located; (c) the amount of square feet of
rentable area contained in the Second Option Space (the "Second Option Space
Area"); (d) the percentage(s) which shall be the equivalent of Tenant's
Operating Share for payment of Operating Costs and Tenant's Tax Share for
payment of Tax escalation payments with respect to the Second Option Space (the
"Second Option Space Shares"), using the same denominators used to calculate the
Tenant's Operating Share and Tenant's Tax Share for the Premises; (e) the Base
Tax Amount for purposes of calculating increases in Taxes and the Base Operating
Costs Amount for purposes of calculating increases in Operating Costs,
respectively, for the Second Option Space, calculated in accordance with the
method by which they are being calculated for the Premises; and (f) the amount
of the annual Fixed Rent for the Second Option Space as determined by Landlord
as provided in subsection 39.4(B). If Tenant shall desire to exercise the Option
with respect to the Second Option Space (the "Second Option Space Exercise"),
Tenant shall send Owner written notice thereof (the "Second Option Notice") by
no later than thirty (30) days after the day upon which Owner shall have sent
the Availability Notice to Tenant with respect thereto, TIME BEING OF THE
ESSENCE.
(3) If Tenant shall fail to deliver the First Option Notice or
the Second Option Notice by the dates set forth above in subsections 39.1(B)(1)
and (2), respectively, TIME BEING OF THE ESSENCE AS TO SUCH DATES, or shall
elect not to lease the Option Space in question, Tenant shall have no further
right to lease such Option Space and Tenant's Option under this Article 39 with
respect to the Option Space in question shall be deemed to be waived and become
null and void and of no further force and effect, and Landlord shall thereafter
have the unrestricted right to lease such Option Space to any person or entity
upon such terms and conditions as Landlord shall deem appropriate. Tenant shall
only have the right to lease an Option Space in whole (but not in part) pursuant
to this Article 39. Tenant shall not have the right to revoke an Option Notice
delivered pursuant to this Article 39.
Section 39.2 (A) It shall be a condition to Tenant's right to exercise
each Option that: (1) Tenant or any Permitted Tenant shall occupy at least two
(2) full floors of the original Premises for the conduct of its business on the
applicable Option Space Commencement Date (each such Date is called a "Relevant
Date"); (2) Tenant shall occupy all of the Option Space
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for the conduct of its business on the Relevant Date; and (3) no Event of
Default shall have occurred and be continuing on the Relevant Date.
(B) For purposes of this Article 39, the Term "Tenant" shall
be deemed to refer to and mean Tenant and the Permitted Tenant.
Section 39.3 (A) If Tenant delivers the First Option Notice as aforesaid,
with respect to the First Option Space, TIME BEING OF THE ESSENCE AS TO SUCH
DELIVERY, then on the First Option Space Commencement Date: (1) the First Option
Space shall be added to and be deemed a part of the Premises upon all of the
terms and conditions of this Lease; (2) the First Option Space shall be
delivered in its then "as is" condition, and Landlord shall not be obligated to
perform any work or make any installations with respect thereto, except that
Landlord shall perform any required Base Building Work with respect to the First
Option Space and shall provide Tenant a Landlord's Contribution for Tenant's
improvement work in the First Option Space equal to $1,146,585.00; (3) Tenant's
Tax Share shall be increased to twenty-nine and sixty- four one hundredths
(29.64%) percent and Tenant's Operating Share shall be increased to thirty and
sixty-three one hundredths (30.63%) percent to reflect the addition to the
Premises of the rentable square feet of the First Option Space; and (4) the
Fixed Rent for the Premises (including the First Option Space), as set forth on
Exhibit B hereof shall be the amounts set forth in Section B of Exhibit B,
instead of the amounts set forth in Section A of said Exhibit.
Section 39.4 (A) If Tenant delivers the Second Option Notice as aforesaid,
with respect to the Second Option Space, TIME BEING OF THE ESSENCE AS TO SUCH
DELIVERY, then on the Second Option Space Commencement Date: (1) the Second
Option Space shall be added to and deemed a part of the Premises upon all of the
terms and conditions of this Lease, except as specifically set forth in this
Article 39; (2) the Second Option Space shall be delivered in its then "as is"
condition, and Landlord shall not be obligated to perform any work or make any
installations with respect thereto; (3) Landlord shall pay Tenant a Landlord's
Contribution towards Tenant's improvement work for the Second Option Space which
shall be equal to an amount obtained by multiplying (a) $27.50 by (b) the Second
Option Space Area, by (c) a fraction, the numerator of which shall be the number
of years remaining in the Initial Term as of the Second Option Space
Commencement Date and the denominator of which shall be fifteen and seventy-five
one-hundredths (15.75) (being the number of years in the Initial Term); (4)
Tenant's Tax Share and Tenant's Operating Share shall each be increased by the
Second Option Space Tax and Operating Shares, respectively; (5) the Fixed Rent
shall be increased annually by the applicable amount determined pursuant to the
provisions of Section 39.4(B) hereof; (6) the Base Operating Costs Amount with
respect to the Second Option Space shall be the amount of the Operating Expenses
for the calendar year immediately preceding the calendar year in which the
Second Option Space Commencement Date shall occur: and (7) the Base Tax Amount
with respect to the Second Option Space shall be the amount of the Taxes for the
Tax Year immediately preceding the Tax Year in which the Second Option Space
Commencement Date shall occur.
(B) The Fixed Rent for the Second Option Space shall be an amount
equal to ninety-five (95%) percent of Fair Market Rent for the Second Option
Space on the Second Option Space Commencement Date, as determined in accordance
with the terms and conditions of Section 2.7 of this Lease.
Section 39.5 On the applicable Option Space Commencement Date, Landlord
shall make available or cause to be made available in the Parking Area, one
Parking Space per one thousand (1,000) square feet in the Option Space in
question (the "Maximum Spaces"). Not later than ten (10) Business Days prior to
the Relevant Date for the Option Space in question, TIME BEING OF THE ESSENCE,
Tenant shall notify Landlord in writing of the number of Parking Spaces (not to
exceed the Maximum Spaces) that Tenant shall require; if Tenant notifies
Landlord that it requires less than the Maximum Spaces, then Landlord shall have
no further obligation to make the balance of the Maximum Spaces available to
Tenant. Tenant's use of and the charges for such Parking Spaces to be provided
in connection with an Option
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Space shall be based on the same terms, conditions, covenants and agreements as
are provided in Article 15 with respect to the Parking Spaces initially made
available to Tenant.
ARTICLE 40
GUARANTY OF LEASE
The effectiveness of this Lease is expressly conditioned upon Landlord's
receipt of an original counterpart of a guaranty in form and substance identical
to the guaranty of lease annexed hereto as Exhibit I and made a part hereof (the
"Guaranty of Lease"), properly executed by authorized officials of UNITED STATES
TRUST COMPANY OF NEW YORK (the "Guarantor"), in favor of Landlord and
guaranteeing the due observance and performance of Tenant's obligations under
this Lease.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this Lease as of the day and year first above written.
Witness for Landlord: LANDLORD:
NEWPORT OFFICE CENTER III COMPANY, LLC,
/s/ [ILLEGIBLE] a New Jersey limited liability company
- -----------------------------------
BY: NOC III REALTY CORP., a New Jersey
corporation, a member
By: /s/ Richard S. LeFrak
------------------------------------
Name: Richard S. LeFrak
Title: President
TENANT:
Witness/Attest for Tenant: U.S. TRUST COMPANY OF NEW JERSEY,
a bank and trust company formed under
the laws of the State of New Jersey
/s/ Barbara Block Brown By: /s/ Harry O'Mealia III
- ----------------------------------- ------------------------------------
Name: Harry O'Mealia III
Title: President
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EXHIBIT A
FLOOR PLAN OF THE PREMISES
---------------------------
TYPICAL LOW RISE FLOOR PLAN
- -------------------------------------
NEWPORT OFFICE CENTER III
JERSEY CITY, NEW JERSEY
[PHOTO OMITTED]
By THE LEFRAK ORGANIZATION
[FLOOR PLAN OMITTED]
Second thru Eighth Floors
John M.Y. Lee/Michael Timichula, P.C., Architects
Specifications subject to omissions, changes, errors and corrections
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EXHIBIT A-1
NEWPORT SITE PLAN
[MAP OMITTED]
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EXHIBIT A-2
LEGAL DESCRIPTION
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05, 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No. 3660 and from
said point runs, thence;
o Along said westerly sideline S 25(degrees)29'14" W a distance of
41.96 feet to a point of curvature in the same, thence;
o Southerly along said westerly sideline and along a curve to the left
with a radius of 1300.00 feet and an arc distance of 359.98 feet and
a central angle of 15(degrees)51'56", chord bearing S
17(degrees)33'16" W and a chord distance of 358.83 feet to a point,
thence;
o Leaving said westerly sideline of Washington Boulevard, N
83(degrees)27'19" W a distance of 186.92 feet to a point, thence;
o N 06(degrees)15'42" E a distance of 390.56 feet to a point, thence;
o S 83(degrees)44'18" E a distance of 271.00 feet to the POINT AND
PLACE OF BEGINNING.
Containing 85,534 square feet or 1.964 acres.
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EXHIBIT A-3
LOCATION FOR UPS GENERATOR
(NOT TO SCALE)
[MAP OMITTED]
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EXHIBIT A-3
LOCATION FOR UPS GENERATOR
(NOT TO SCALE)
[MAP OMITTED]
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EXHIBIT B
FIXED RENT SCHEDULE
<TABLE>
<CAPTION>
RENTAL PERIOD FIXED RENTAL
------------- ------------
AMOUNT
------
<S> <C>
Section A.
From the Rent Commencement Date to the day $3,287,310.00 per annum;
immediately preceding the fifth (5th) anniversary payable $273,942.50 monthly
of the Rent Commencement Date
From the fifth (5th) anniversary of the Rent $3,540,180.00 per annum;
Commencement Date to the day immediately payable $295,015.00 monthly
preceding the tenth (10th) anniversary of the
Rent Commencement Date
From the tenth (10th) anniversary of the Rent $3,793,050.00 per annum;
Commencement Date to the Fixed Expiration payable $316,087.50 monthly
Date
</TABLE>
Section B.
Notwithstanding the above, if Tenant shall exercise the Option for the First
Option Space, the Fixed Rent for the entire Premises (including the First Option
Space) shall be as follows:
<TABLE>
<S> <C>
From the Rent Commencement Date to the day $4,371,354.00 per annum;
immediately preceding the fifth (5th) anniversary payable $364,279.50 monthly
of the Rent Commencement Date
From the fifth (5th) anniversary of the Rent $4,707,612.00 per annum;
Commencement Date to the day immediately payable $392,301.00 monthly
preceding the tenth (10th) anniversary of the
Rent Commencement Date
From the tenth (10th) anniversary of the Rent $5,043,870.00 per annum;
Commencement Date to the Fixed Expiration payable $420,322.50 monthly
Date
</TABLE>
Section C.
Fixed Rent for the Renewal Terms shall be as set forth and determined in
accordance with the terms and provisions of Article 2 of this Lease.
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EXHIBIT C
CLEANING SPECIFICATIONS AND SCHEDULE
[SEE FOLLOWING PAGES C-1 THROUGH C-10]
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NEWPORT OFFICE CENTER III
I. SPECIFICATIONS - PUBLIC AREAS/DETAILED LIST OF CHORES
BUILDING PUBLIC AREAS
1. Nightly The entrances, lobby floors and all other flooring will be cared
for per the manufacturers specifications. Maximum care will be taken to
maintain a high luster and the highest quality floors. All cleaning
chemicals used must be in compliance with all state, federal and local
regulations. MSDS sheets for all chemicals used at the Building must be
maintained on site. Nightly chores include:
Sweep, damp and dry mop all lobby and corridor floors with a nonacidic
detergent approved by Property Manager.
Lay down or remove lobby runners as necessary
Clean weather mats with vacuum. Damp wipe vinyl edges to remove all dust.
Sweep and damp mop under all mats.
Clean all lobby walls of debris, gum markings, etc. Utilizing proper
methods which will not damage finishes.
Thresholds for all lobby doors shall be cleaned and polished. Clean metal
trim on all lobby doors (inside and out).
Wipe with treated cloth the security console in the lobby.
Vacuum all carpeted areas, spot clean and remove any gum or tar which has
adhered to the surface.
Dust all baseboard ledges, moldings, window frames, planters, furniture
and mailboxes.
Clean all water fountains with a germicidal solution.
Clean all telephones, telephone booths and storage rooms.
Clean all cigarette urns and replace sand as necessary (sand to be
furnished by Vendor).
Empty and clean all wastepaper baskets and disposal receptacles, wash and
disinfect all wastepaper towel/refuse cans and any other receptacles.
C-1
<PAGE> 99
Collect and remove from building wastepaper, cardboard boxes, waste
materials and all rubbish from normal operation of the Building to a
designated area. Waste and/or rubbish bags shall be furnished by Vendor.
Vendor will cooperate with Property Manager with regard to the Buildings
Recycling Program (copy attached as Exhibit B) and shall report any
non-compliance to Property Manger.
Wipe clean and polish all brass, stainless steel, metal and other bright
work using a non-acid polish at the direction of Property Manager.
Wipe clean all metal door knobs, kick plates, directional signs, door
saddles, mail chutes, etc.
Spot clean all doors, door frames, lobby door glass, building directory
glass (including frames), walls and light switches to remove fingerprints,
spills and other markings as necessary to keep in clean condition
throughout day.
Wash all glass on entrance doors as required by Property Manager or at
least twice a day. Particular care should be exercised that the bottom
mullions be wiped clean.
2. Weekly
a) Clean all lobby and retail glass once each week inside and out.
b) Dust with treated cloth all door and ventilating louvers.
c) Police and sweep all vacant floor areas once weekly.
d) Wash lobby walls, elevator walls and ceilings, stairways, offices
and utility closets with clear water or approved cleanser.
e) Wash and remove all fingermarks, ink stains, smudges, scuff marks
and other marks from metal partitions, sills all vertical surfaces
(to include doors, walls and window sills), including elevator doors
and other surfaces as necessary.
f) Damp mop and spray buff all resilient floors.
g) Sweep and damp mop all stair areas, (day staff).
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3. Monthly
a) High dust and wash all electrical and air conditioning ceiling
fixtures at least once per month.
b) Clean/dust lights monthly, globes, diffusers and fixtures as
necessary and report all outages to Property Manager.
c) Shampoo all weather mats.
d) Wash vinyl and metal kick plates on doors.
e) Wash doors and door frames.
f) Wash stairwell landings and stairways (day staff).
g) Scrub and recondition resilient floor areas using buffable non-slip
type floor finish.
h) Pile lift, rotary shampoo and steam extract hall carpet on all
multi-tenant floors.
i) Inspect and keep clean fire hose cabinets, extinguishers and similar
equipment, and report any discrepancies to Property Manager.
4. Quarterly
a) High dust all horizontal and vertical surfaces not reached in
nightly cleaning, such as pipes, light fixtures and door frames.
b) Damp wash diffusers, vent grilles, and other such items including
reflectors, globes, diffusers and trim.
5. Annually
a) Wash exterior light fixtures, including reflectors, globes,
diffusers and trim.
b) Wash walls in corridors.
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ELEVATORS (INCLUDING FREIGHT ELEVATORS)
1. Daily
a) Vacuum and spot clean elevator cab carpets at least twice a day.
Remove all gum and foreign matter on sight.
b) Clean elevator walls, removing all fingerprints and smudges, and
unauthorized marks and writing (use manufacturer's approved method).
c) Vacuum, clean and polish door tracks, thresholds, and push buttons
in cabs and in corridors and all metal bright work.
d) Clean and polish doors inside and outside as instructed by Property
Manager.
e) Report all mechanical deficiencies or damage to supervisor.
f) Wet mop and remove all stains from freight elevators.
2. Weekly
Steam extract elevator cab carpets if needed. (It may be necessary to
rotary shampoo and steam extract during inclement weather or increase
frequencies).
3. Monthly
Dust elevator ceiling lenses.
4. Quarterly
a) Pile lift, rotary shampoo and steam extract elevator cab carpets if
needed.
b) Treat elevator cab carpets with carpet protector.
c) Completely clean elevator cab walls, doors, tracks and push buttons
with materials approved by Property Manager.
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STAIRWAYS (Day Porter Staff)
1. Daily
a) Police and clean light fixtures.
b) Police stairways to remove debris, gum and foreign matter.
c) Spot sweep.
d) Report all mechanical deficiencies or damages to supervisor.
2. Weekly
a) Wipe all ledges and hand rails of dust in stairways.
b) Thoroughly sweep and wash floors.
c) Clean and dust fire extinguishers, fire piping etc.
d) Dust all vinyl bases.
e) Mop risers, stairs and landings.
3. Monthly
a) Wipe clean exit lights.
ALL RESTROOMS (INCLUDING MECHANICAL ROOMS)
1. Daily
a) Scour, wash and disinfect all toilet seats (both sides), basins,
bowls, urinals (including underside of fixtures) and tile walls near
urinals and sinks throughout. Wipe clean all chrome plated plumbing
on fixtures, including flush rings, drains and overflow outlets. No
abrasive or caustic chemicals shall be used; all finishes shall be
shining and unstreaked.
b) Replenish toilet supplies in containers, including paper towels,
toilet paper, hand soap, sanitary containers and wipe clean all such
containers. Materials/supplies to be approved by Property Manager &
supplied by contractor.
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c) Clean and polish all mirrors, powder shelves, glass, bright work,
enamel surfaces etc.
d) Sweep and wet mop floors using disinfectant floor soap. Clean
solution must be used on each floor. Pay particular attention to
edges and corners.
e) Spot clean doors, partitions, and walls.
f) Empty, clean inside and out with approved disinfectant and replace
liners of all sanitary disposal receptacles.
g) Wipe clean all doors, switch plates, kick plates, handles, etc.
h) Remove all graffiti from any surface or report same to supervisor if
special attention is necessary.
i) Remove fingermarks from painted surfaces.
j) Report any mechanical malfunction to supervisor.
k) Clean all thresholds.
l) Pour nightly mop water with disinfectant down floor drains.
2. Weekly
a) Clean air supply and exhaust grills.
b) Machine scrub floors as required with approved germicidal detergent
solution, but not lees than weekly.
c) Wash all restroom partitions and doors, taking care to avoid
streaking.
d) Dust and clean light fixtures.
3. Monthly
a) Wash all walls and washable ceilings, taking care to avoid
streaking.
b) Wash interior and exterior of all waste containers, leaving no
streaks or smudges.
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4. Annually
Wash lighting fixtures as necessary, but not less than once per year.
BUILDING SERVICE AREAS
1. Keep locker rooms and slop sink rooms in a neat, orderly and clean
condition at all times. Closets are to be locked.
2. Clean mechanical equipment areas, electric, telephone and
communication closets as often as necessary (day staff) but not less
than once per month.
3. Clean standpipes and sprinkler siamese connections and hose bibs at
least once each month.
4. Broom sweep daily and steam clean loading docks weekly.
SIDEWALK AREAS
1. Sweep sidewalk at least twice daily using power vacuum and hose down
daily, weather permitting, and in compliance with applicable local
laws.
2. Remove gum and foreign matter from sidewalks on sight, using a
non-cfc freeze remove process.
3. Remove paper and other debris from planters and sidewalks as needed,
but at least four times daily.
4. Remove all graffiti from interior and exterior stone and finished
metal surfaces, using methods recommended by the installer, within
twenty-four hours of discovery or notification by Property Manager.
5. Scrub clean and/or steam clean sidewalks no lees than once per week
weather permitting.
6. Completely remove snow and ice from entrances, sidewalks, steps,
driveways, curbs and crosswalks promptly during and after snowstorms
(a 38" path shall be provided around the Building and to the
street). Shovels and a sufficient supply of ice-melting chemicals
will be kept by Vendor at the Building during winter season.
7. Clean and polish brass standpipe and siamese connections twice
weekly or as required to maintain a bright untarnished condition at
all times.
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WINDOW CLEANING
1. Any materials used for the washing of windows or metal surfaces
shall be approved by Property Manager prior to their use.
2. Wash and clean a) inside of all windows, every four months,
including all adjacent metal surfaces, which shall be wiped clean
during the window cleaning operation, and b) the inside and outside
of grade level windows where applicable, as determined by the
Property Manger. Wipe all interior metal window frames, mullions,
terrace doors, if any, and other unpainted interior metal surfaces
of the perimeter walls of the Building at the time as the interior
of the glass is washed.
3. Building entrance doors and directory glass shall be cleaned daily
and kept in clean condition at all times during the day. All lobby
glass (interior and exterior) shall be washed and cleaned daily.
4. Vendor shall provide all labor, materials, tools, equipment and
perform all operations necessary to carry out the window washing
operation.
5. Vendor shall wash and clean the outside of all windows once every
four (4) months, including all adjacent metal surfaces, which shall
be wiped cleaned during the window cleaning operation.
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SPECIFICATIONS - TENANT OFFICE AREAS
1. NIGHTLY
a) Empty ash trays and damp wipe clean, Screen all sand urns, if
applicable.
b) Empty all waste and recycling containers and transport trash and
recycled materials to collection areas; Tenant must comply with
Building recycling procedures including insuring the deposit of all
waste and recycled materials in properly marked and designated
receptacles.
c) Wash and sanitize all waste and recycling containers, as required.
d) Wipe wood, metal, glass, and plastic laminated office furniture
surfaces clean of dust, dirt and smudges, including counters,
railings exposed tops of files, bookcases, shelves, sills, ledges, &
other low items; paper and folders on desk areas will not be removed
or disturbed.
e) Wash, clean and sanitize all water fountains and/or water coolers.
f) Vacuum clean all carpeted areas.
g) Sweep tile, raised flooring, and other floor surfaces with approved
chemically treated cloths and remove any black heel marks.
h) Remove fingerprints, dirt, smudges, graffiti, and like items of
grime from all glass doors, doors, frames, glass partitions, light
switch covers, walls, elevator call buttons, elevator door jams and
doors.
i) Wipe telephone mouth piece and receiver with disinfectant.
j) Remove all gum and foreign matter from all floors, walls and
partitions.
k) Return chairs and waste baskets to proper locations in office or
work areas.
l) Vacuum carpet/mop floor in all elevator lobby areas and spot clean,
as necessary.
2. WEEKLY
a) Dust all high areas, including but not limited to, picture frames,
charts, graphs and similar wall hangings not reached during daily
cleaning.
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b) Dust inside of all door jams.
c) Vacuum available open floor area and under desks.
d) Dust chair legs and bases of all furniture, door frames, and like
items.
e) Dust and clean fire extinguishers, as required.
f) Dust all vinyl bases.
g) Wipe and clean all metal, polished chrome and bright work.
h) Clean, spray and buff all Building-standard resilient and or
composite tile floors.
i) Machine buff wood, terrazzo or other stone floors using
manufacturer's recommended procedures.
3. MONTHLY
a) Clean and polish conference tables.
b) Thoroughly dust all Building-installed blinds.
c) Vacuum all fabric wall and or partition covering.
d) Clean and vacuum heating, ventilating and air-conditioning supply
and return grills and surrounding ceiling tiles.
4. QUARTERLY
a) Damp wipe the exterior of all lighting fixtures.
b) Perform high dusting (i.e., door sash, tops of partitions, shelving
ledges, etc., over 70").
c) Power scrub or otherwise recondition all hard covered flooring to
provide a level of appearance equivalent to a completely refinished
floor.
5. Annually
a) Thoroughly wash/clean all Building-installed blinds.
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EXHIBIT D
VENTILATED/COOLED AIR PERFORMANCE CRITERIA
The Systems described in Article 24 of this Lease shall provide to the
Premises (x) cool air at reasonable temperatures, pressures and degrees, and in
reasonable volume and velocities at suitable locations, to maintain evenly
controlled temperatures at 75 degrees F with outdoor conditions of 95 degrees F
dry bulb, and 75 degrees F wet bulb, and (y) mechanical ventilation at
temperatures to be controlled at 70 degrees F with outdoor temperature of 10
degrees F.
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EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors, halls or other common areas of the Property shall not be
obstructed or encumbered by any Tenant or used for any purpose other than for
ingress to and egress from the Premises and for delivery of merchandise and
equipment in a prompt and efficient manner using elevators and passageways
designated for such delivery by Landlord. Only hand trucks equipped with rubber
tires and safeguards shall be used by Tenant, jobbers and others in all
space(s), public hall(s) or common area(s) of the Property in the delivery or
receipt of merchandise.
2. If the Premises are situated on the ground floor of the Building, Tenant
shall, at Tenant's sole cost and expense, keep the sidewalks and curb in front
of the Premises clean and free from ice, snow, etc.
3. The water and wash closets and plumbing fixtures in the Building shall not be
used for any purposes other than those for which they were designed or
constructed.
4. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere, in any way, with other tenants or those having business therein.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or the Building, or on the inside of the Premises if the same is
visible from the outside of the Premises, without the prior written consent of
Landlord, except that the name of Tenant may appear on the entrance door of the
Premises and in the elevator lobby area of each floor of the Premises. In the
event of the violation of the foregoing by any Tenant, Landlord may remove same
without any liability and may charge the expense incurred by such removal to
Tenant, and Tenant shall pay the same promptly, as additional rent hereunder.
Signs on exterior doors visible from common areas and directory tablet shall be
inscribed, painted or affixed for Tenant by Landlord, at the expense of such
Tenant, and shall be of a size, color and style acceptable to Landlord.
6. Tenant shall not mark, paint, drill into, or in any way deface any part of
the Premises or the Building, provided, however, that Tenant shall have the
right to hang pictures, shelving and other similar items within the Premises. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall not lay
linoleum, or other similar floor covering, so that the same shall come in direct
contact with the floor of the Premises, and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water;
the use of cement or other similar adhesive material being expressly prohibited.
7. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the Premises only on the
freight elevators and through the Building's service entrances and corridors,
and only during hours and in a manner approved by Landlord. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or this Lease.
8. Landlord reserves the right to exclude from the Building, during non-Business
Hours and on non- Business Days, all persons who do not present a Building pass
signed by Landlord or Landlord's managing agent. Landlord or Landlord's managing
agent will furnish passes to persons for whom Tenant requests same in writing.
Tenant shall be responsible for all persons for whom he requests such pass and
shall be liable to Landlord for all acts of such person.
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9. Landlord shall have the right to prohibit any advertising by Tenant which, in
Landlord's opinion, tends to impair the reputation of Landlord and/or the
Building, or its desirability as a building for retail and office use, and upon
written notice from Landlord, Tenant shall refrain from, and shall discontinue,
such advertising.
10. Tenant shall not bring or permit to be brought or kept in or on the
Premises, any inflammable, combustible or explosive fluid, material, chemical or
substance, or any hazardous substance or material, or cause or permit any odors
of cooking or other processes, or any unusual or other objectionable odors to
permeate in or emanate from the Premises.
11. Tenant shall not place a load on any floor of the Premises exceeding the
floor loan per square foot area which it was designed to carry and which is
permitted by Legal Requirements. Landlord reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installations shall be placed and maintained by Tenant at Tenant's expense
in setting sufficient in Landlord's judgment to absorb and prevent vibration,
noise and annoyance.
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EXHIBIT F
FORM OF MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is entered into as of the _____ day of
December, 1998, by and between NEWPORT OFFICE CENTER III COMPANY, LLC, a New
Jersey limited liability company ("Landlord"), and U.S. TRUST COMPANY OF NEW
JERSEY, a bank and trust company formed under the laws of the State of New
Jersey ("Tenant").
1. Pursuant to an Agreement of Lease (the "Lease") executed by
Landlord and Tenant, dated as of December 21, 1998, Landlord has leased to
Tenant certain Premises which are part the building located at 499 Washington
Street, Jersey City, New Jersey, more particularly described in Exhibit A
attached hereto and made a part hereof by reference.
2. The term of the Lease shall commence on the Commencement Date set
forth in the Lease and shall expire upon the expiration of the last day of the
ninth (9th) calendar month following the fifteenth (15th) anniversary of the
Commencement Date as determined by the provisions of the Lease.
3. Tenant has an option to extend the term of the Lease for two (2)
periods of five (5) years each, as provided in Section 1.3 of the Lease, on the
same terms and conditions as stated in the Lease.
4. Tenant has options to expand the size of the Premises as more
particularly set forth in Article 39 of the Lease, on the terms and conditions
as set forth therein.
5. This Memorandum of Lease is subject to all of the terms,
conditions and understandings set forth in the Lease, which are incorporated
herein by reference and made a part hereof, as though copied verbatim herein. In
the event of a conflict between the terms and conditions of this Memorandum of
Lease and the terms and conditions of the Lease, the terms and conditions of the
Lease shall prevail.
5. This Memorandum may be executed in one or more counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same instrument.
EXECUTED as of the date first written above.
LANDLORD:
NEWPORT OFFICE CENTER III COMPANY, LLC,
a New Jersey limited liability company
By: NOC III Realty Corp., a New Jersey
corporation, a member
By:
------------------------------------
Name:
---------------------------
Title:
--------------------------
TENANT:
U.S. TRUST COMPANY OF NEW JERSEY,
a bank and trust company formed under
the laws of the State of New Jersey
By:
------------------------------------
Name: Harry O'Mealia III
Title: President
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ACKNOWLEDGMENTS
[LANDLORD]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the day of December 1998, before me personally came
, to me known, who being by me duly sworn, did depose and
say that he resides at , that he is the President of
NOC III REALTY CORP, a corporation which is a member of NEWPORT OFFICE CENTER
III COMPANY, LLC, and that he signed his name on behalf of said corporation, as
a member of the limited liability company, for and on behalf of said limited
liability company.
----------------------------------------
Notary Public
[CORPORATE TENANT]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the day of December, 1998, before me personally came Harry
O'Mealia III, to me known, who being by me duly sworn, did depose and say that
he resides in that he is the President of U.S. TRUST COMPANY
OF NEW JERSEY, the bank and trust company described in and which executed the
foregoing instrument, as TENANT; and that he signed his name thereto by order of
the bylaws of said company.
----------------------------------------
Notary Public
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Exhibit A to Memorandum of Lease
Legal Description
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05, 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No. 3660 and from
said point runs, thence;
o Along said westerly sideline S 25(degrees)29'14" W a distance of
41.96 feet to a point of curvature in the same, thence;
o Southerly along said westerly sideline and along a curve to the left
with a radius of 1300.00 feet and an arc distance of 359.98 feet and
a central angle of 15(degrees)51'56", chord bearing S
17(degrees)33'16" W and a chord distance of 358.83 feet to a point,
thence;
o Leaving said westerly sideline of Washington Boulevard, N
83(degrees)27'19" W a distance of 186.92 feet to a point, thence;
o N 06(degrees)15'42" E a distance of 390.56 feet to a point, thence;
o S 83(degrees)44'18" E a distance of 271.00 feet to the POINT AND
PLACE OF BEGINNING.
Containing 85,534 square feet or 1.964 acres.
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EXHIBIT G
TERMS AND CONDITIONS OF THE ANTENNA INSTALLATION
1. The Antenna Installation. In connection with the conduct of Tenant's
business in and from the Premises, and Tenant's use of the Premises for the
Permitted Use, Tenant shall have the right, without payment to Landlord of any
license fee or other charge therefor, except as is otherwise expressly set forth
in this Exhibit G, and upon the terms and conditions set forth herein, to
install (and thereafter operate, maintain, repair and replace) on the roof of
the Building in an area which is (a) not reserved to Landlord and its agents and
employees for their use and/or which is required for or in connection with the
operation of the Building, the Building Chilled Water System and/or the Building
Systems, respectively, and (b) is available for use by or for Building tenants
and/or third parties (the "Available Roof Area"), in a location consisting of an
area not to exceed more than Tenant's Operating Share of the Available Roof Area
and to be designated as set forth below (the "Location"), one radio-wave
antenna, satellite or microwave dish (collectively, the "Antenna"), related
equipment (the "Equipment"), a supporting structure for the Antenna (the
"Support"), and certain conduits, wires and cables in certain portions of the
Building to connect the Antenna to certain of Tenant's equipment in the Premises
(the "Wiring"). The Antenna, Equipment, Support and the Wiring and peripheral
equipment installed in connection therewith are collectively referred to as the
"Antenna Installation". The Antenna, Related Equipment and the Support shall fit
entirely within the Location. The specifications for the Antenna and the
Equipment shall be more particularly described on a Rooftop Installation
Questionnaire in the form of Schedule 1 annexed hereto which Schedule 1 shall be
filled out and delivered by Tenant to Landlord prior to the performance of the
Antenna Installation.
2. Tenant's Sole Cost. The installation of the Antenna Installation and
subsequent operation, maintenance, repair and/or replacement thereof during the
Term of this Lease shall be at Tenant's sole cost and expense.
3. The Location; Plans and Specifications. (a) The actual size, dimensions
and area of the Location, the routing of all Wiring in connection therewith (the
"Routing") as well as the physical location of any item(s) constituting part of
the Antenna Installation shall be subject to Landlord's approval, not to be
unreasonably withheld or delayed. Tenant hereby agrees that Landlord may require
Tenant to utilize a Location on the roof of the Building that can be screened
from view from the sidewalks adjacent to the Building and the Property,
provided, however, that such Location permits uninterrupted reception and
transmission for the Antenna.
(b) Before performing the Antenna Installation, Tenant shall provide
Landlord with plans and specifications (collectively, the "Plans") setting forth
the actual dimensions of the Antenna, the Equipment and the Wiring, as well as
the proposed manner of affixing same to the Location and the particular Wiring
Location/Routing for the Antenna Installation, including, without limitation,
specifications of the Support as well as the proposed manner of affixing the
Support to the roof of the Building at the Location. In addition, the Plans
shall specify whether the Antenna will be used only for transmitting, or only
receiving, or for both transmitting and receiving, the detailed particulars
thereof specifying the frequency band(s) which will be utilized and whether the
Antenna is capable of using (and whether or not the Antenna or related Equipment
is fitted with) a splitter device permitting multiplexing (i.e. enabling
utilization of more than one frequency band). Landlord's written approval of the
Plans shall first be obtained before Tenant shall proceed with any work in
connection with the Antenna Installation.
(c) Tenant agrees that the Antenna Installation and its use shall at
all times be in accordance with the provisions of Article 38, this Exhibit G and
the Rooftop Installation Questionnaire attached hereto as Schedule 1, subject to
Landlord's prior approval, not to be unreasonably withheld or delayed.
(d) Tenant acknowledges being advised by Landlord that Landlord may
permit third parties to, and may itself utilize various portions of the
Building's Available Roof Area for the installation of microwave dishes,
satellite communications equipment, whip antennae, TV,
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radio and other communications equipment (collectively, the "Other
Communications Equipment"), and Tenant expressly acknowledges and agrees that
the selection of the Location, as well as the selection of the Wiring
Location/Routing to be used in connection therewith, shall be subject to
Landlord's direction and designation as hereinbefore provided in paragraph 2(a)
above. If such use by third parties shall interfere with Tenant's reception,
Landlord shall cause such third parties to cease such use or shall relocate
Tenant's antenna, at Landlord's expense, so that there will no longer be any
interference.
(e) Tenant covenants and agrees that the Antenna Installation shall
be performed in accordance with the Plans as finally approved by Landlord and
subject to any conditions that Landlord may have imposed in connection with its
approval of such Plans, provided that any such conditions do not prevent or
interfere with the proper functioning of the Antenna for the purposes of
Tenant's business activities in the Premises.
(f) All costs of the Antenna Installation shall be borne solely by
Tenant, including, without limitation: (i) all costs necessary to have the
Antenna comply with Legal Requirements of Legal Authorities; (ii) the amount of
any taxes levied on the Antenna Installation; (iii) Landlord's reasonable
out-of-pocket charges for reviewing any initial or subsequent Tenant's Plans
which shall be payable by Tenant to Landlord on demand; (iv) subject to Section
4.7 of the Lease, Landlord's reasonable charges for providing Building and
possibly other supervisory personnel to be in attendance during the installation
of the Antenna, any maintenance and repair thereof, as well as the removal
thereof; and (v) subject to Section 4.7 of the Lease, Landlord's reasonable
charges for having Landlord's contractor or representative physically connect
the Wiring required for the operation of the Antenna to the Building's
electrical system and/or to or with any other Building System.
(g) Tenant shall make no changes to the method or specifications of
the Antenna Installation as set forth in the Plans as finally approved by
Landlord (and subject to any conditions imposed by Landlord in connection with
such approval), nor shall Tenant make any additions or changes to any of the
Wiring in the Building, including, but not limited to, any change in the
location of any of the Wiring without, in each instance, first obtaining
Landlord's prior written consent.
(h) Except for changes in frequencies approved by Landlord in
accordance with Paragraph 4(b) below, Tenant represents that the Antenna and its
use shall at all times be in accordance with the Questionnaire attached hereto
as Schedule 1.
4. Use. (a) The Antenna shall be used by Tenant solely for the
transmission and reception of signals to or from the Antenna, in connection with
Tenant's business operations in, and the Permitted Uses of, the Premises and no
rights to use same shall be granted by Tenant to any third parties, other than
expressly permitted by Article 38 of this Lease, but subject, nevertheless to
the provisions of this Section 4. Without limiting the foregoing, Tenant
expressly covenants and agrees that in no event will the Antenna be used, or be
permitted to be used, for any so called informational or data sale or the
commercial carrying of signals by any persons or entities (including any
commercial broadcasters) other than Tenant (or a Permitted Tenant) or other
assignee or successor-in-interest permitted under Article 38 of this Lease for
the operation of its business in the Premises. Tenant covenants that it will use
due diligence and reasonable efforts to avoid use of its Antenna that will, in
any manner, cause interference with any Other Communications Equipment now or
hereafter installed on the roof of the Building or with any communications
equipment located in the Building.
(b) (i) Tenant further expressly covenants and agrees that the
Antenna will, throughout the Term, operate on only the fixed channel frequency
which Tenant has specified in the Plans submitted to Landlord. In the event
Tenant should wish to change the frequency utilized by the Antenna to another or
other frequencies (the "Frequency Change"), Tenant shall request Landlord's
prior written approval of the Frequency Change on not less than sixty (60) days'
prior written notice to Landlord of such desired Frequency Change(s), specifying
in said notice the new frequency or frequencies that will be utilized by the
Antenna, the date(s) of the desired change(s)
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and whether such changed frequency or frequencies will be used for transmission
or receiving or both.
(ii) Landlord hereby agrees not to unreasonably withhold or delay
its consent to Tenant's Frequency Change, provided, however, that (x) Tenant
shall comply with all applicable Legal Requirements of Legal Authorities
regarding any such Frequency Change; (y) Tenant's Frequency Change will not
interfere with the use of any Other Communications Equipment then in use on the
roof of the Building; and (z) the Frequency Change will not result in, or impose
an extra burden on any of the Building Systems.
5. Electricity. Tenant shall pay for any electricity used in
connection with the operation of the Antenna, in accordance with Article 13 of
this Lease.
6. Expiration of the Term. (a) By no later than the expiration of
the Term, Tenant shall remove the Antenna Installation and restore all areas of
the Building affected by same, including, without limitation, the Building's
roof and the Location as well as any areas to which the Wiring shall have been
affixed, to the condition same were in prior to installing the Antenna
Installation. In the event Tenant fails to so remove all or any part of the
Antenna Installation by the expiration or sooner termination of the Term of this
Lease, Landlord, upon five (5) days' written notice, without being obligated to
do so, shall have the right to remove and dispose of all or any part of the
Antenna Installation that has not been so removed by Tenant without being
required to account to Tenant therefor, as well as to make all repairs of any
damage incurred by such removal, including, without limitation, restoration of
the roof area which may have been pierced by the Support forming part of the
Antenna Installation or any other part of such Antenna Installation.
(b) Landlord shall also have the right to charge Tenant the cost of
such removal, repair and restoration as well as a holdover fee at the rate of
$1,000.00 per day for each day or part thereof commencing with the sixtieth
(60th) day after the expiration or sooner termination of this Lease, that Tenant
shall have failed to entirely remove the Antenna Installation until such time as
the Antenna Installation shall have been removed, such holdover fee to be in
addition to the amounts required to be paid by Tenant pursuant to Section 1.2 of
the Lease.
(c) Nothing contained herein shall be construed as an express or
implied consent to Tenant, or anyone claiming by or under Tenant, remaining in
possession of or continuing to use and occupy all or any part of the Building's
roof, including the Location, after the expiration or sooner termination of the
Term of this Lease.
7. Indemnity. Tenant agrees to indemnify, defend and hold Landlord,
all Mortgagees and the Lessors harmless from all claims made by or on behalf of
any person or entity for injury to persons or property, death, damage or
violation of law arising from the installation, maintenance, operation or
removal of the Antenna Installation as well as from all loss, liability, cost
and expense (including attorney's fees, court costs and disbursements) in
connection therewith.
8. Maintenance and Repair. Tenant, at its sole cost and expense,
shall keep the Antenna Installation in good order and condition throughout the
Term of this Lease and shall promptly make all repairs thereto as and when
necessary. In addition, Tenant, at its sole cost and expense, shall be
responsible for all repairs of any damage occasioned to the roof of the Building
or any portion of the Building or sidewalks thereof caused or resulting from:
(a) the installation and/or maintenance, repair, replacement or removal of the
Antenna Installation or any part thereof, or any piercing of the surface of the
Building's roof, including, without limitation, any piercing of the roof surface
which may result in a leakage of water into other areas of the roof or the
Building with resultant damage; or (b) Tenant's wrongful or negligent acts or
those of Tenant's agents, employees or contractors in performing any inspection
of, or repairs to, or maintenance, replacement or removal of the Antenna
Installation or any part thereof.
9. Access. (a) All desired access by Tenant or Tenant's employees,
agents or
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contractors to the Building for purposes of installing, maintaining and removing
the Antenna Installation shall first be coordinated with Landlord's Building
representative; it being understood that Landlord shall have the right to
prescribe the times when such access shall be afforded Tenant (which may be
other than during normal Business Hours for space in the Building which is
occupied) all to the intent and purpose that the normal operation of the
Building shall not be disturbed or interfered with. Landlord's charges for
overtime elevator service, if required, provided to Tenant shall be paid by
Tenant upon submission of Landlord's bills therefor. All access by Tenant to the
roof and other portions of the Building as well as all installations, repairs
and maintenance performed by Tenant in connection with the Antenna Installation,
shall be subject to the supervision and control of Landlord, and to Landlord's
safeguards for the security of the Building, the Building equipment and property
and installations of Building tenants, provided, however, Landlord hereby agrees
to provide reasonably necessary access to Tenant and its agents to permit Tenant
to install, repair, maintain and replace the Antenna. If for any reason Landlord
wishes to assign a person to be present when Tenant desires access to the roof,
Landlord may charge Tenant a fee for having Landlord's representative in
attendance during the period of Tenant's access, such fee not to exceed 100% of
the union hourly rate of pay including all fringe benefits paid by Landlord to
such representative. Where such representative shall be made available during
non-Business Hours or on non-Business Days, the fee shall be computed on a
minimum four (4) hour call basis.
(b) With respect to any repairs to the roof of the Building or to
any portions of the Building that may be Tenant's responsibility pursuant to the
foregoing provisions hereof, Landlord shall have the right to notify Tenant
either before or after receipt of notice from Tenant of desired access to the
Building for the purpose of making such repairs, that Landlord elects to itself
make such repairs utilizing contractors of Landlord's choosing, including,
without limitation, Landlord or affiliate(s) of Landlord, whose charges for
performing such work shall be competitive with those of other contractors
performing similar work in first-class buildings located in the Comparable
Market, subject, however, to providing such documentation as may be reasonably
required by Tenant's insurance provisions, and which charges shall be paid
directly by Tenant on submission of a bill therefor by Landlord or reimbursed by
Tenant to Landlord, if Landlord shall have paid all or part of such charges in
the first instance.
(c) All labor used by Tenant or any of Tenant's agents or
contractors in connection with any installation, repair, replacement or other
work concerning the Antenna Installation shall be compatible with then existing
Building labor. In the event of any labor conflicts between existing Building
labor and Tenant's laborers, Tenant shall remove or cause its laborers to leave
the Building.
10. No Liability. (a) Landlord shall have no liability to Tenant in the
event the Antenna Installation or any part thereof is stolen or damaged from
whatever cause, unless such theft or damage is caused by or due to the gross
negligence or wilful misconduct of Landlord, its agents, servants or employees,
or in the event the electric supply to the Antenna Installation is interrupted
for any reason, including, without limitation, interruption caused by damage to
the Wiring or cables anywhere in the Building, unless such damage to the Wiring
or cables results from the gross negligence or wilful misconduct of Landlord,
its agents, servants and employees.
(b) Further, Landlord shall not be liable (i) for any such damage
caused by other tenants or persons in, upon or about the Building, including the
roof thereof, or caused by operations in construction of any private, public or
quasi-public work, or (ii) for the interference caused by Other Communications
Equipment on the Building's roof, or (iii) for consequential damages or lost
profits arising out of any loss of use of the Antenna Installation or any part
thereof by Tenant or any person claiming through or under Tenant.
11. As-Is. Tenant acknowledges that Landlord shall make the Location
available to Tenant in its "as-is" condition, as of the Commencement Date.
Further, Tenant acknowledges and agrees that Landlord shall have no obligation
to perform any work, supply any materials, incur any expense or make any
installation in order to prepare the Location for Tenant's use, as provided in
this Exhibit G.
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12. Insurance. Tenant shall at all times maintain insurance covering the
Antenna Installation of the types and in the amounts specified in Article 9 of
this Lease.
13. Other Terms and Conditions of Lease. Except as set forth herein, the
Antenna Installation shall be governed by all of the terms and conditions of
this Lease. In the event of any conflict between the terms and conditions set
forth in this Exhibit G and the terms and conditions contained in the other
portion of this Lease, the terms and conditions set forth in Exhibit G shall
prevail.
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SCHEDULE I TO EXHIBIT G
ROOFTOP INSTALLATION QUESTIONNAIRE
Dimensions: See Plans Attached
Service Clearance:
Weight: See Plans Attached
Heat Output:
Airflow:
Power Requirements: Voltage:
kVa:
Kwh per day:
Wattage:
Phase:
Plug Type:
Power Cord:
Operating Environment Temperature:
Relative
Humidity
Antenna Type:
Frequency:
Radio Equipment:
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EXHIBIT G-1
TERMS AND CONDITIONS OF THE UPS GENERATOR INSTALLATION
1. The Generator Installation. In connection with the provision of emergency
electric energy to the Premises and Tenant's or any Permitted Tenant's use of
the Premises for the Permitted Use, Tenant or any Permitted Tenant shall have
the right, without payment to Landlord of any license fee or other charge
therefor, except as is otherwise expressly set forth in Article 38 or this
Exhibit G-1, and upon the terms and conditions set forth herein, to install (and
thereafter operate, maintain, repair and replace) at the Generator Location as
shown on Exhibit A-3 annexed to this Lease, consisting of two (2) 800 kW
generators each having a normal size day tank (the "Generator") and related
equipment consisting of inter alia a motor and batteries (collectively, the
"Equipment"). The Generator and the Equipment are collectively referred to as
the "Generator Installation".
2. Tenant's Sole Cost. The installation of the Generator and subsequent
operation, maintenance, repair and/or replacement thereof during the Term of
this Lease shall be at Tenant's sole cost and expense.
3. The Generator Location; the Generator Installation; Plans and Specifications.
(a) The actual size, dimensions and areas of the Generator Location, as well as
the physical location of any item(s) constituting part of the Generator
Installation, shall be subject to Landlord's reasonable designation and
reasonable approval, and shall be substantially as shown on Exhibit A-3 to this
Lease, which in no event shall be smaller or greater than an area necessary to
install the Generator and Equipment.
(b) Before performing the Generator Installation, Tenant shall provide
Landlord with plans and specifications (collectively, the "Plans") setting forth
the actual dimensions of the Generator and the Generator Installation.
Landlord's written approval of the Plans shall first be obtained before Tenant
shall proceed with any work in connection with the Generator Installation.
(c) Tenant agrees that Landlord and its agents and employees may have
reasonable access to the Generator Location as required for the maintenance,
repair or operation of the Building and/or the Building Systems.
(d) Tenant covenants and agrees that the Generator Installation shall be
performed in accordance with the Plans as finally approved by Landlord and
subject to any conditions that Landlord may have reasonably imposed in
connection with its approval of such Plans, provided that any such conditions do
not prevent or interfere with the proper functioning of the Generator. Further
the use and operation of the Generator shall be in accordance with Article 38
and this Exhibit G-1.
(e) All costs of the Generator Installation shall be borne solely by
Tenant, including, without limitation: (i) all costs necessary to have the
Generator Installation comply with Legal Requirements of the Legal Authorities
and/or Environmental Laws; (ii) the amount of any taxes levied on the Generator
Installation; (iii) Landlord's reasonable out-of-pocket charges for reviewing
any initial or subsequent Tenant's Plans which shall be payable by Tenant to
Landlord on demand; and (iv) Landlord's reasonable charges for providing
Building and possibly other supervisory personnel to be in attendance during the
installation of the Generator, any maintenance and repair thereof, as well as
the removal thereof.
(f) Tenant shall make no changes to the method or specifications of the
Generator Installation as set forth in the Plans as finally approved by Landlord
(and subject to any reasonable conditions imposed by Landlord in connection with
such approval), without first obtaining Landlord's prior written consent
thereto, which Landlord agrees shall not be unreasonably withheld or delayed.
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4. Expiration of the Term. (a) By no later than the expiration of the Term,
Tenant shall, at Landlord's option, remove the Generator Installation, and
restore all portions of the Generator Location and all areas of the Building
(whether outdoors or indoors) affected thereby. In the event Tenant fails to so
remove all or any part of the Generator Installation by the expiration or sooner
termination of the Term, Landlord, upon five (5) days' written notice, without
being obligated to do so, shall have the right to remove and dispose of all or
any part of the Generator Installation that has not been so removed by Tenant
without being required to account to Tenant therefor, as well as to make all
repairs of any damage incurred by such removal, including, without limitation,
restoration of the Generator Location which may have been damaged by the weight
and/or anchoring of the Generator Installation.
(b) Landlord shall also have the right to charge Tenant the cost of such
removal, repair and restoration as well as a holdover fee at the rate of
$1,000.00 per day for each day or part thereof commencing with the sixtieth
(60th) day after the expiration or sooner termination of this Lease, that Tenant
shall have failed to entirely remove the Generator Installation from the
Generator Location until such time as the Generator Installation shall have been
so removed, such holdover fee to be in addition to the amounts required to be
paid by Tenant pursuant to Section 1.2 of this Lease.
(c) Nothing contained herein shall be construed as an express or implied
consent to Tenant, or anyone claiming by or under Tenant, remaining in
possession of or continuing to use and occupy all or any part of the Generator
Location, after the expiration or sooner termination of the Term of this Lease.
5. Indemnity. Tenant agrees to indemnify, defend and hold Landlord, all
Mortgagees and Lessors harmless from all claims made by or on behalf of any
person or entity for injury to persons or property, death, damage or violation
of any Legal Requirements, including, but not limited to, Environmental Laws
arising from or in connection with the installation, maintenance, operation or
removal of the Generator Installation as well as from all loss, liability, cost
and expense (including attorney's fees, court costs and disbursements) in
connection therewith.
6. Access. (a) All desired access by Tenant or Tenant's employees, agents or
contractors to the Building and/or the Generator Location, for purposes of
installing, maintaining and removing all or portions of the Generator shall
first be coordinated with Landlord's Building representative; it being
understood that Landlord shall have the right to prescribe the times when such
access shall be afforded Tenant (which may be other than during normal Business
Hours) all to the intent and purpose that the normal operation of the Building
shall not be disturbed or interfered with. All access by Tenant to portions of
the Building and the Generator Location as well as all installations, repairs
and maintenance performed by Tenant in connection with the Generator
Installation, shall be subject to the reasonable supervision and control of
Landlord, and to Landlord's safeguards for the security of the Building, the
Building equipment and property and installations of Building tenants, provided,
however, Landlord hereby agrees to provide reasonably necessary access to Tenant
and its agents to permit Tenant to install, repair, maintain and replace the
Generator in the Generator Location.
(b) All labor used by Tenant or any of Tenant's agents or contractors in
connection with any installation, repair, replacement or other work concerning
the Generator Installation shall be compatible with then existing Building
labor. In the event of any labor conflicts between existing Building labor and
Tenant's laborers, Tenant shall remove or cause its laborers to leave the
Building.
7. No Liability. Landlord shall have no liability to Tenant in the event the
Generator Installation or any part thereof is stolen or damaged from whatever
cause, unless such theft or damage is caused by or due to the gross negligence
or willful misconduct of Landlord, its agents, servants or employees.
8. As-Is. Tenant acknowledges that Landlord shall make the Generator Location(s)
available to Tenant in its or then "as-is" condition, as of the Commencement
Date. Further, Tenant
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acknowledges and agrees that Landlord shall have no obligation to perform any
work, supply any materials, incur any expense or make any installation in order
to prepare the Generator Location for Tenant's use, as provided in this Exhibit
G-1.
9. Insurance. Tenant shall at all times maintain insurance covering the
Generator Installation of the types and in the amounts specified in Article 9 of
the Lease.
10. Other Terms and Conditions of Lease. Except as set forth herein, the
Generator Installation shall be governed by all of the terms and conditions of
this Lease. In the event of any conflict between the terms and conditions set
forth in this Exhibit G-1 and the terms and conditions contained in the other
portion of this Lease, the terms and conditions set forth in this Exhibit G-1
shall prevail.
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EXHIBIT H
LEFRAK GUARANTY OF LANDLORD'S CONTRIBUTION AND BROKERAGE
COMMISSION OWED TENANT'S BROKER
IN CONSIDERATION OF, and as an inducement for, the execution and
delivery of the lease dated as of December __, 1998 ("Lease"), by U.S. TRUST
COMPANY OF NEW JERSEY, as lessee therein named (the "Tenant") with NEWPORT
OFFICE CENTER III COMPANY, LLC, as lessor therein named ("Landlord"), and in
further consideration of the sum of One ($1.00) Dollar and other good and
valuable consideration paid by Tenant to the undersigned, the receipt and
sufficiency of which are hereby acknowledged, the undersigned, SAMUEL J. LEFRAK
and RICHARD S. LEFRAK (individually and collectively, the "Guarantor"), jointly
and severally, hereby guarantees, absolutely and unconditionally, to Tenant or
any "Permitted Tenant" (as such term is defined in Section 12.9(A) of the Lease)
the full and prompt disbursement of "Landlord's Contribution", as such term is
defined in Section 36.9 of the Lease and payment of any brokerage commission
owed to "Tenant's Broker", as such term is defined in Section 31.1(C) of the
Lease pursuant to the terms of that certain brokerage agreement of even date
herewith between Landlord and the Tenant's Broker (the "Brokerage Agreement");
such disbursement and payment are collectively referred to as the
"Obligations"). The payment of the Landlord's Contribution Obligation shall be
in accordance with the terms and conditions of the Lease, and the payment of the
brokerage Obligation shall be in accordance with the provisions of the Brokerage
Agreement.
This Guaranty is an absolute and unconditional guaranty of payment
(and not of collection) and performance. The liability of Guarantor is
co-extensive with that of Landlord and this Guaranty shall be enforceable
against either Guarantor without the necessity of any suit or proceeding on
Tenant's part of any kind or nature whatsoever against Landlord, but shall not
be enforceable against Guarantor prior to the expiration of (i) the thirty (30)
day period afforded to Landlord under Section 36.9(B)(3) of the Lease, with
respect to the Landlord's Contribution Obligation, and (ii) any notice or grace
periods afforded to Landlord under the Brokerage Agreement, with respect to the
brokerage Obligation, respectively, as the case may be, and, except as provided
above, without the necessity of any notice or nonpayment, nonperformance or
nonobservance or of any notice of acceptance of this Guaranty or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby waives. Guarantor hereby expressly agrees that the validity of
this Guaranty and the obligations of Guarantor hereunder shall in no way be
terminated, affected, diminished or impaired by reason of (a) the assertion or
the failure to assert by (i) Tenant against Landlord of any of the rights or
remedies reserved to Tenant pursuant to the terms, covenants and conditions of
the Lease, or (ii) the Tenant's Broker against Landlord of any of the rights or
remedies reserved to the Broker under the Brokerage Agreement, or (b) any
non-recourse language limiting the liability of the Landlord under the Lease.
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be discharged or released by reason of (a)
any modification, amendment, or assignment of the Lease or the Brokerage
Agreement, or (b) any transfer of the Property, or (c) any modification or
waiver of or change in any of the terms, covenants and conditions of the Lease
by Landlord and Tenant, or (d) any extension of time that may be granted by
Tenant and Landlord, or Tenant's Broker and Landlord, respectively, or (e) any
consent, release, indulgence or other action, inaction or omission under or in
respect of the Lease or the Brokerage Agreement, respectively, or (f) any
dealings or transactions or matter or thing occurring between Landlord and
Tenant, including without limitation, any sublet of the Premises or portion
thereof, or (g) any bankruptcy, insolvency, reorganization, liquidation,
arrangement, assignment for the benefit of creditors, receivership, trusteeship
or similar proceeding affecting Landlord, whether or not notice thereof is given
to Guarantor. Notwithstanding anything to the contrary herein contained, with
the exception of the matters described in clause (g) above, Tenant shall have no
greater rights against Guarantor than it would have against Landlord or
Landlord's successors or assigns and the liability of Guarantor shall be
co-extensive with that of Landlord and Landlord's successors or assigns.
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Should Tenant be obligated by any bankruptcy or other law to repay
to Landlord or to Guarantor or to any trustee, receiver or other representative
of either of them, any amounts previously paid, this Guaranty shall be
reinstated in the amount of such repayments. Tenant shall not be required to
litigate or otherwise dispute its obligations to make such payments if it in
good faith believes that such obligation exists.
No delay on the part of Tenant or the Tenant's Broker in exercising
any right, power or privilege under this Guaranty or failure to exercise the
same shall operate as a waiver of or otherwise affect any such right, power or
privilege, nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing, signed by
Tenant with respect to the Landlord's Contribution Obligation and/or the
Tenant's Broker with respect to the brokerage Obligation; nor shall any such
waiver be applicable except in the specific instance for which given.
All of Tenant's rights and remedies under the Lease and the Tenant's
Broker's rights under the Brokerage Agreement, respectively, and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
Tenant and Tenant's Broker shall, within ten (10) business days
after written request therefor by Landlord or Guarantor, provide Landlord and
Guarantor with a release, certificate or other instrument reasonably
satisfactory to the requesting party evidencing the payment in whole or in part
of the Landlord's Contribution Obligation which may become payable in accordance
with the terms and conditions of the Lease or brokerage Obligation which may
become due and payable in accordance with the terms and conditions of the
Brokerage Agreement.
Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Tenant or the Tenant's Broker on account of
the liability of Guarantor hereunder, Guarantor will notify Tenant or the
Tenant's Broker in writing that such payment or performance as the case may be,
is for such purpose. No such payment by Guarantor pursuant to any provision
hereof shall entitle Guarantor by subrogation or otherwise to the rights of
Tenant or the Tenant's Broker to any payment by Landlord or out of the property
of Landlord, except after payment by Landlord of all of the Obligations.
A Guarantor shall be deemed to be in default under this Guaranty if:
(i) Guarantor shall make any assignment for the benefit of
creditors, or pursuant to an order, judgment or decree entered by any court of
competent jurisdiction; or
(ii) a receiver, trustee or liquidator of Guarantor or of all
or substantially all of the assets of Guarantor shall be appointed; or
(iii) Guarantor shall be adjudicated a bankrupt or insolvent;
or
(iv) a petition seeking reorganization of a Guarantor or an
arrangement with creditors or a petition to take advantage of any insolvency law
shall be approved,
and in such event, Tenant shall have the right to offset the amount of any
unpaid Landlord's Contribution against the Rent payable under the Lease.
Each Guarantor agrees that he will, at any time and from time to
time, within ten (10) business days following written request by Tenant or the
Tenant's Broker, execute,
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acknowledge and deliver to Tenant or Tenant's Broker, respectively, as the case
may be, a statement certifying that this Guaranty is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating such modification).
As a further inducement to Tenant to make and enter into the Lease
and in consideration thereof, each Guarantor covenants and agrees that in any
action or proceeding brought on, under or by virtue of this Guaranty, each
Guarantor shall and does hereby waive trial by jury. Without regard to
principles of conflicts of laws, the validity, interpretation, performance and
enforcement of this Guaranty shall be governed by and construed in accordance
with the internal laws of the State of New Jersey.
In the event that this Guaranty shall be held ineffective or
unenforceable by any court of competent jurisdiction, then Guarantor shall be
deemed to be Landlord under Article 31 and Article 36 of the Lease with the same
force and effect as if Guarantor were expressly named as a joint Landlord
therein.
Each Guarantor warrants and represents to Tenant that he has the
legal right and capacity to execute this Guaranty.
This Guaranty shall be binding on and inures to the benefit of the
successors and assigns to the parties hereto. As used herein, the term
"successors and assigns" shall be deemed to include, but shall not be limited
to, the heirs, executors and legal representatives of Guarantor. If there is
more than one Guarantor, the liability hereunder shall be joint and several. All
terms and words used in this Guaranty, regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other
gender as the context may require.
Any notice, demand or request by Tenant or Guarantor shall be in
writing, and shall be deemed to have been duly given or made if either delivered
by hand (against a signed receipt), sent by certified or registered mail (return
receipt requested), by nationally recognized overnight courier, or by facsimile
transmission with a copy sent simultaneously by nationally recognized overnight
courier, addressed to Guarantor, at the address of the Landlord set forth in the
Lease, or Tenant, at the address for notices to Tenant set forth in the Lease.
Notices shall be deemed to have been duly rendered or delivered on the date when
the same shall have been hand delivered, three (3) business days from when the
same shall have been mailed as herein provided, on the date of delivery by
overnight courier, or if by facsimile transmission, the date of the confirmed
transmission. Any party may change its notice address by notice given to the
other party in accordance with this notice provision. The attorneys for each
party may, but are not obligated, to give notices on behalf of their clients.
If Guarantor fails to pay any amount payable under this Guaranty
when due, interest on such amount shall accrue at the Interest Rate (as defined
in the Lease); provided, however, that Landlord shall not be entitled to collect
interest under the Lease and interest under this Guaranty for the same
underlying obligation.
This Guaranty shall become null and void and of no further force and
effect at such time as the Obligations shall be satisfied.
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IN WITNESS WHEREOF, the undersigned have duly executed this Guaranty
as of the _____ day of December, 1998.
GUARANTOR:
----------------------------------------
Samuel J. LeFrak
----------------------------------------
Richard S. LeFrak
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EXHIBIT I
GUARANTY OF LEASE BY
UNITED STATES TRUST COMPANY OF NEW YORK
IN CONSIDERATION OF, and as an inducement for the granting,
execution and delivery of the lease, dated as of December ____, 1998 ("Lease"),
by NEWPORT OFFICE CENTER III COMPANY, LLC, a New Jersey limited liability
company, Landlord therein named ("Landlord," which term shall be deemed to
include the named Landlord and its successors and assigns) to U.S. TRUST COMPANY
OF NEW JERSEY, a New Jersey corporation, Tenant therein named ("Tenant," which
term shall be deemed to include the name Tenant and its successors and assigns),
and in further consideration of the sum of One ($1.00) Dollar and other good and
valuable consideration paid by Landlord to the undersigned, the receipt and
sufficiency of which are hereby acknowledged, the undersigned, UNITED STATES
TRUST COMPANY OF NEW YORK, a New York corporation, with an address at 114 West
47th Street, New York, New York 10036 Attention: Mr. Richard E. Morgan, Sr. Vice
President ("Guarantor," which term shall be deemed to include the named
Guarantor and its successors and assigns), hereby guarantees, absolutely and
unconditionally, to Landlord the full and prompt payment of all Rent (as defined
in the Lease) (including, without limitation, Landlord's legal expenses and
reasonable attorneys' fees and disbursements to which it is entitled under the
Lease) payable by Tenant under the Lease, and hereby further guarantees the full
and timely performance and observance of all the covenants, terms, conditions
and agreements therein provided to be performed and observed by Tenant; and
Guarantor hereby covenants and agrees to and with Landlord that if default shall
at any time be made by Tenant in the payment of any Rent, or if Tenant should
default or be deemed in default under the Lease or in the performance and
observance of any of the terms, covenants and conditions contained in the Lease,
Guarantor shall and will forthwith faithfully perform and fulfill all of such
terms, covenants and conditions and will forthwith pay to Landlord all damages
to which Landlord is entitled under the terms of the Lease that may arise in
consequence of any such default by Tenant under the Lease, together with all
reasonable attorneys' fees, and disbursements incurred by Landlord in the
enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment
(and not of collection) and of performance. The liability of Guarantor is
primary, is co-extensive with that of Tenant and any other guarantor of Tenant's
obligations under the Lease and this Guaranty shall be enforceable against
Guarantor without the necessity of any suit or proceeding on Landlord's part of
any kind or nature whatsoever against Tenant or any other guarantor and without
the necessity of any notice of nonpayment, nonperformance or nonobservance or of
any notice of acceptance of this Guaranty or of any other notice or demand to
which Guarantor might otherwise be entitled, all of which Guarantor hereby
expressly waives. Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall in no way be
terminated, affected, diminished or impaired by reason of (a) the assertion or
the failure to assert by Landlord against Tenant of any of the rights or
remedies reserved to Landlord pursuant to the terms, covenants and conditions of
the Lease, or (b) any nonliability of Tenant under the Lease by insolvency,
discharge in bankruptcy, or any other defect or defense which may now or
hereafter exist in favor of Tenant.
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of (a) any assignment (by Landlord or Tenant), renewal, modification,
amendment or extension of the Lease or sublease of all or part of the Premises
(except with respect to a recapture by Landlord pursuant to the terms of Section
12.4 of the Lease or with respect to any assignment of the Lease from Tenant to
Guarantor), or (b) any modification or waiver of or change in any of the terms,
covenants and conditions of the
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Lease by Landlord and Tenant, or (c) any extension of time that may be granted
by Landlord to Tenant, or (d) any consent, release, indulgence or other action,
inaction or omission under or in respect of the Lease or any other guaranty, or
(e) any dealings or transactions or matter or thing occurring between Landlord
and Tenant, or (f) any bankruptcy, insolvency, reorganization, liquidation,
arrangement, assignment for the benefit of creditors, receivership, trusteeship
or similar proceeding affecting Tenant or any other guarantor, whether or not
notice thereof or of any thereof is given to Guarantor. Notwithstanding anything
to the contrary herein contained, with the exception of the matters described in
clause (f) above, Landlord shall have no greater rights against Guarantor than
it would have against Tenant or Tenant's successors or assigns and the liability
of Guarantor shall be co-extensive with that of Tenant and Tenant's successors
or assigns.
Should Landlord be obligated by any bankruptcy or other law to repay
to Tenant or to Guarantor or to any trustee, receiver or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of such repayments. Landlord shall not be required to litigate or
otherwise dispute its obligations to make such payments if it in good faith
believes that such obligation exists.
No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of or otherwise affect any such right, power or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
This Guaranty represents the entire agreement of Guarantor and
Landlord with respect to the subject matter hereof and there are no promises,
agreements, representations, warranties or undertakings with respect to this
Guaranty, the Lease of the Building except as set forth herein or in the Lease.
No waiver or modification of any provision of this Guaranty nor any termination
of this Guaranty shall be effective unless in writing, signed by Landlord; nor
shall any such waiver be applicable except in the specific instance for which
given.
All of Landlord's rights and remedies under the Lease and under this
Guaranty or any other guaranty, now or hereafter existing at law or in equity or
by statute or otherwise, are intended to be distinct, separate and cumulative
and no exercise or partial exercise of any such right or remedy therein or
herein mentioned is intended to be in exclusion of or a waiver of any of the
others.
Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Landlord or perform or fulfill any term,
covenant or condition hereunder on account of the liability of Guarantor
hereunder, Guarantor will notify Landlord in writing that such payment or
performance as the case may be, is for such purpose. No such payment or
performance by Guarantor pursuant to any provision hereof shall entitle
Guarantor by subrogation or otherwise to the rights of Landlord to any payment
by Tenant or out of the property of Tenant, except after payment of all sums or
fulfillment of all covenants, terms, conditions or agreements to be paid or
performed by Tenant under the Lease.
Guarantor shall be deemed to be in default under this Guaranty and
Tenant shall be deemed in default under the Lease:
(i) Guarantor shall make any assignment for the benefit of
creditors, or pursuant to an order, judgment or decree entered by any court of
competent jurisdiction, or
(ii) a receiver, trustee or liquidator of Guarantor or of all
or substantially all of the assets of Guarantor shall be appointed, or
(iii) Guarantor shall be adjudicated a bankrupt or insolvent,
or
(iv) a petition seeking reorganization of Guarantor or an
arrangement with creditors or a petition to take advantage of any insolvency law
shall be approved,
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unless, however, a substitute guarantor satisfactory to Landlord shall,
simultaneously with such event of default by Guarantor, execute and deliver to
Landlord a guaranty in the same form as this Guaranty.
Guarantor agrees that it will, at any time and from time to time,
within ten (10) business days following written request by Landlord, execute,
acknowledge and deliver to Landlord a statement certifying that this Guaranty is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating such
modification). Guarantor agrees that such certificate may be relied on by anyone
holding or proposing to acquire any interest in the "Premises" or "Building" (as
such terms are defined in the Lease) from or through Landlord or by any
mortgagee or prospective mortgagee of the Premises or Building or of any
interest therein.
As a further inducement to Landlord to make and enter into the Lease
and in consideration thereof, Landlord and Guarantor covenant and agree that in
any action or proceeding brought on, under or by virtue of this Guaranty,
Landlord and Guarantor shall and do hereby waive trial by jury. Without regard
to principles of conflicts of laws, the validity, interpretation, performance
and enforcement of this Guaranty shall be governed by and construed in
accordance with the internal laws of the State of New Jersey.
Guarantor warrants and represents to Landlord that it has the legal
right and capacity to execute this Guaranty. In the event that this Guaranty
shall be held ineffective or unenforceable by any court of competent
jurisdiction, then Guarantor shall be deemed to be a Tenant under the Lease with
the same force and effect as if Guarantor were expressly named as a joint Tenant
therein.
This Guaranty shall be binding on and inures to the benefit of the
successors and assigns to the parties hereto. As used herein, the term
"successors and assigns" shall be deemed to include, but shall not be limited
to, the heirs, executors and legal representatives of Guarantor. If there is
more than one Guarantor, the liability hereunder shall be joint and several. All
terms and words used in this Guaranty, regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other
gender as the context may require.
Any notice, demand or request by Landlord or Guarantor shall be in
writing, and shall be deemed to have been duly given or made if either delivered
by hand (against a signed receipt), sent by certified or registered mail (return
receipt requested), by nationally recognized overnight courier, or by facsimile
transmission with a copy sent simultaneously by nationally recognized overnight
courier, addressed to Guarantor or Landlord, which ever is applicable, at the
address for each such party set forth above. Notices shall be deemed to have
been duly rendered or delivered on the date when the same shall have been hand
delivered, three (3) business days from when the same shall have been mailed as
herein provided, on the date of delivery by overnight courier, or if by
facsimile transmission, the date of the confirmed transmission. Any party may
change its notice address by notice given to the other party in accordance with
this notice provision.
If Tenant holds over beyond the term of the Lease, the obligations
of Guarantor shall extend and apply to such holdover tenancy.
If any provision of this Guaranty, or the application thereof to any
person or circumstance, shall be to any extent held void, unenforceable or
invalid, then the remainder of this Guaranty, or the application of such
provision to persons or circumstances other than those as to which it is held
void, unenforceable or invalid, respectively, shall not be affected thereby, and
each provision of this Guaranty shall be valid and enforceable to the fullest
extent permitted by law.
If Guarantor fails to pay any amount payable under this Guaranty
when due, interest on such amount shall accrue at the Interest Rate (as defined
in the Lease); provided, however, that
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Landlord shall not be entitled to collect interest under the Lease and interest
under this Guaranty for the same underlying obligation.
This Guaranty shall become null and void and of no further force and
effect at such time as all of the obligations of Tenant under the Lease shall
have been satisfied.
IN WITNESS WHEREOF, the undersigned have duly executed this Guaranty
as of the _____ day of December, 1998.
ATTEST: GUARANTOR:
UNITED STATES TRUST COMPANY OF
NEW YORK
By:
- ---------------------------------- ------------------------------------
, Secretary Name: John M. Deignan
Its: Executive Vice President
(Corporate Seal)
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EXHIBIT J
OVERTIME COSTS FOR THE FIRST TWELVE MONTH PERIOD AFTER THE RENT
COMMENCEMENT DATE
I. Air Conditioning
Monday - Friday 6:00 PM-9:00 PM $43.80 per hour
Monday - Friday 9:00 PM-8:00 AM and
Saturday and Sunday $103.20 per hour
2nd Air Conditioning Unit $43.80 per hour
II. Use of Freight Elevator Manned
Monday-Friday 6:00 PM-8:00 AM and
Saturday and Sunday $40.00 per hour
III. Supplementary Building Labor Charges:
Engineer $54.00/HR./Man
Porter $30.00/HR/Man
Guard $30.00/HR/Man
IV. Condenser Water Charge
193.00/Yr./Ton 6:00 AM - 9:00 PM Monday - Friday
9:00 PM-6:00 AM Monday - Friday Saturday and Sunday
Add Labor @ $54.00/HR
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EXHIBIT K
RENTABLE SQUARE FEET OF EACH FLOOR OF BUILDING
15th floor 42,606 RSF
14th Floor 42,606 RSF
12th Floor 42,606 RSF
11th Floor 42,606 RSF
10th Floor 41,694 RSF
9th Floor 41,694 RSF
8th Floor CROSSOVER FLOOR 42,145 RSF
7th Floor 42,145 RSF
6th Floor 42,145 RSF
5th Floor 42,145 RSF
4th Floor 42,145 RSF
3rd Floor 42,145 RSF
2nd Floor 42,145 RSF
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SCHEDULE 1
LIST AND DESCRIPTION OF THE BUILDING PLANS
(page 1 of 2)
Architectural - John M. Y. Lee/Michael Timchula Architects
<TABLE>
<CAPTION>
Drawing Number Title Drawing Date (As of 7/15/98)
- -------------- ----- ----------------------------
<S> <C> <C>
A-101 Site Plan 7/6/98
A-102 Umbrella Plan 4/20/98
A-201 Ground Floor 7/6/98
A-202 2nd - 8th Floor "
A-203 9th - 15th Floor "
A-204 Bulkhead Level 1&2 "
A-301 East Elevation 4/20/98
A-302 North/South Elevation "
A-303 West Elevation "
A-304 Longitudinal Section 4/20/98
A-305 Cross- Section "
A-401 Ground Floor Core Plan 1 6/22/98
A-402 Ground Floor Core Plan 2 7/2/98
A-403 2nd - 8th Floor Core "
A-404 9th - 15th Floor Core 6/22/98
A-405 Bulkhead Level 1&2 Core 7/6/98
A-411 Curtain Wall - Typical 4/20/98
A-412 Curtain Wall - Bay Window 1/20/98
A-413 Curtain Wall - Details 5/12/98
A-414 Curtain Wall - Column Details 4/20/98
A-415 Curtain Wall- Spandrel Details "
A-416 Roof Details 1 5/12/98
A-417 Roof Details 2 4/20/98
A-418 Roof Details 3 "
A-421 Ground Floor - Exterior Details "
A-422 Ground Floor - Exterior Details 6/2/98
A-423 Ground Floor - Section 1 4/20/98
A-424 Ground Floor - Section 2 "
A-425 Pedestrian Passage Section 6/2/98
A-426 Lobby Storefront Elevation Section 4/20/98
A-427 Lobby Storefront Elevation Section "
A-428 Storefront Details - Misc. Details 5/12/98
A-431 Canopy Elevations & Sections 6/22/98
A-432 Canopy Details 4/20/98
A-501 Lobby Plan "
A-502 Lobby - Reflected Ceiling Plan "
A-503 Lobby - Elevations "
A-504 Lobby - Elevations & Details "
A-5O5 Lobby - Details "
A-511 Stairs - Plans & Sections 6/22/98
A-512 Stairs - Details "
A-521 Toilet - Details 6/2/98
A-522 Toilet - Details & Misc. Details "
A-601 Door Schedule & Details "
A-602 Door Details "
A-603 Partition Schedule & Details 6/22/98
A-604 Finish Schedule & Details 7/6/98
</TABLE>
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SCHEDULE 1
LIST AND DESCRIPTION OF THE BUILDING PLANS
(page 2 of 2)
Mechanical/Electrical - Rakshan/Malek Associates
<TABLE>
<CAPTION>
Drawing Number Title Drawing Date (As of 7/15/98)
- -------------- ----- ----------------------------
<S> <C> <C>
E1.1A 1st Floor Power Plan 6/11/98
E1.1B 1st Floor Power Plan "
E1.2 Typical Floor Power Plan A 5/20/98
E1.3 Typical Floor Power Plan B "
E1.4 Typical Floor Lighting Plan 6/11/98
E1.5 Roof Level Power Plan 5/20/98
ER1 Power Riser Diagram 6/11/98
ER2 Fire Alarm Riser 5/20/98
ES1 Electric Panel Schedule 6/11/98
P1.1A 1st Floor Plumbing 6/11/98
P1.1B 1st Floor Plumbing "
P1.2 Typical Floor Plumbing 5/20/98
P1.3 Roof Level Plumbing "
PR1 Plumbing Riser Diagram "
PR2 Plumbing Riser Diagram "
PS1 Mechanical Details & Schedules "
FP1.1A 1st Floor Fire Protection 6/11/98
FP1.1B 1st Floor Fire Protection "
FP1.2 Typical Sprinkler Plan "
FP1.3 Roof Level Sprinkler "
FPS1 Sprinkler Details 5/20/98
FPR1 Sprinkler Riser "
MP1.1A 1st Floor HVAC 5/20/98
MP1.1B 1st Floor HVAC "
MP1.2 Typical HVAC Floor Plan A "
MP1.3 Typical HVAC Floor Plan B "
MP1.4 Mechanical Roof Plan "
MR1 Mechanical Riser "
MS1 HVAC Details & Schedule "
</TABLE>
Structural - William Atlas Associates
<TABLE>
<CAPTION>
Drawing Number Title Drawing Date (As of 7/15/98)
- -------------- ----- ----------------------------
<S> <C> <C>
S-1 1st Floor & Foundation Plan 7/6/98
S-2 Pilecap Details & Notes 5/13/98
S-3A Concrete Slab Details "
S-3B Foundation Section & Details 7/6/98
S-3C Foundation Section & Details "
S-4 Column Schedule 6/18/98
S-5 Typical Floor Plan 6/23/98
S-6 Bulkhead Level Framing Plans 6/25/98
S-7 Part Plans & Section Details 6/12/98
S-8 Sections & Details 6/5/98
</TABLE>
Landlord and its architect and engineers reserve the right, during the
construction of the Building to make changes to and modifications of any of the
above listed Building Plans, provided that such changes or modifications do not
materially affect the first-class nature of the Building and/or Tenant's ability
to use and/or occupy the Premises for the Permitted Use.
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SCHEDULE 2
DESCRIPTION OF THE BASE BUILDING WORK
Landlord will provide or install the following work, materials, systems or
equipment at Landlord's sole cost and expense:
PHASE 1 BASE BUILDING WORK
1. The heating, ventilation and air conditioning distribution main duct which
shall terminate outside the wall of the mechanical equipment rooms on each
floor, and shall be installed tight to the floor slab above, and provide for the
installation by Tenant of VAV mixing boxes and flexible ductwork. Heating in the
Premises will be provided by automatically controlled weather compensated
electric perimeter baseboard, meeting the performance criteria on Exhibit D.
2. Two Variable Air Volume ("VAV") air conditioning units on each floor of the
Premises.
3. Temporary electrical service to the Premises sufficient to permit Tenant to
perform Tenant's Initial Alterations.
4. Interior surfaces of the Building's exterior walls finished in drywall,
taped, spackled, and sanded.
5. All interior Building columns finished in drywall, taped, spackled and
sanded.
6. An automatic sprinkler system main loop fully completed, on each floor of the
Premises.
7. Floor slabs with flash patched concrete finish, reasonably level prepared for
Tenant's carpet installation; all vertical penetrations shall be sealed.
8. Outside building hoist(s) operational. Said hoist(s) shall be removed from
the exterior of the Building no later than February 1, 2000.
9. Core walls within the Premises shall be present.
10. Connection "stub outs" available for vent and cold water at all wet columns
and hot water at the bathrooms on each Floor.
11. "Safe corridor" as needed around Building and through lobby.
PHASE 2 BASE BUILDING WORK
1. All common areas of the Building, including common corridors and common
elevator lobbies, finished in a Building-standard manner.
2. All public restrooms on floor of the Premises completed in a
Building-standard manner and meeting all physically challenged requirements.
3. Connection points installed on each floor of the Premises for fire alarm
system. The complete core fire detection system will be installed, operating and
tested in accordance with NFPA requirements.
4. Building standard venetian blinds furnished and installed.
5. Electrical service to the electrical closet on each floor of the Premises,
with 120/208 volt power panels and circuit breakers in place, along with an
insulated grounding system by
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February 1, 2000.
6. Electrical connections, control wiring and plumbing connections for the A/C
System units installed by February 1, 2000.
7. Completed automatic sprinkler system main loop on each floor of the Premises
fully operational and tested in accordance with NFPA requirements.
8. Six (6) passenger elevators fully operational.
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SCHEDULE 3
OPERATING COSTS CATEGORIES IN LANDLORD'S PRO FORMA BUDGET
(Section 2.2(B)(9)
1. Cleaning
2. Elevator Maintenance
3. Labor, Payroll Tax & Expense
4. Insurance
5. Electric
6. Water & Sewer
7. Heat & HVAC
8. Management & Professional Fees
9. Plumbing
10. Janitorial Maintenance
11. CAM
12. Snow Removal
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SCHEDULE 4
LIST OF EXCLUDED NAMES
(Section 19.2)
J.P. Morgan
Neuberger & Berman
Morgan Stanley Dean Witter
Charles Schwab
Bessemer Trust
Fiduciary Trust
Northern Trust
Sanford Bernstein
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LEFRAK GUARANTY OF LANDLORD'S CONTRIBUTION AND BROKERAGE
COMMISSION OWED TENANT'S BROKER
IN CONSIDERATION OF, and as an inducement for, the execution and
delivery of the lease dated as of December 21, 1998 ("Lease"), by U.S. TRUST
COMPANY OF NEW JERSEY, as lessee therein named (the "Tenant") with NEWPORT
OFFICE CENTER III COMPANY, LLC, as lessor therein named ("Landlord"), and in
further consideration of the sum of One ($1.00) Dollar and other good and
valuable consideration paid by Tenant to the undersigned, the receipt and
sufficiency of which are hereby acknowledged, the undersigned, SAMUEL J. LEFRAK
and RICHARD S. LEFRAK (individually and collectively, the "Guarantor"), jointly
and severally, hereby guarantees, absolutely and unconditionally, to Tenant or
any "Permitted Tenant" (as such term is defined in Section 12.9(A) of the Lease)
the full and prompt disbursement of "Landlord's Contribution", as such term is
defined in Section 36.9 of the Lease and payment of any brokerage commission
owed to "Tenant's Broker", as such term is defined in Section 31.1(C) of the
Lease pursuant to the terms of that certain brokerage agreement of even date
herewith between Landlord and the Tenant's Broker (the "Brokerage Agreement");
such disbursement and payment are collectively referred to as the
"Obligations"). The payment of the Landlord's Contribution Obligation shall be
in accordance with the terms and conditions of the Lease, and the payment of the
brokerage Obligation shall be in accordance with the provisions of the Brokerage
Agreement.
This Guaranty is an absolute and unconditional guaranty of payment
(and not of collection) and performance. The liability of Guarantor is
co-extensive with that of Landlord and this Guaranty shall be enforceable
against either Guarantor without the necessity of any suit or proceeding on
Tenant's part of any kind or nature whatsoever against Landlord, but shall not
be enforceable against Guarantor prior to the expiration of (i) the thirty (30)
day period afforded to Landlord under Section 36.9(B)(3) of the Lease, with
respect to the Landlord's Contribution Obligation, and (ii) any notice or grace
periods afforded to Landlord under the Brokerage Agreement, with respect to the
brokerage Obligation, respectively, as the case may be, and, except as provided
above, without the necessity of any notice or nonpayment, nonperformance or
nonobservance or of any notice of acceptance of this Guaranty or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby waives. Guarantor hereby expressly agrees that the validity of
this Guaranty and the obligations of Guarantor hereunder shall in no way be
terminated, affected, diminished or impaired by reason of (a) the assertion or
the failure to assert by (i) Tenant against Landlord of any of the rights or
remedies reserved to Tenant pursuant to the terms, covenants and conditions of
the Lease, or (ii) the Tenant's Broker against Landlord of any of the rights or
remedies reserved to the Broker under the Brokerage Agreement, or (b) any
non-recourse language limiting the liability of the Landlord under the Lease.
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<PAGE> 140
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be discharged or released by reason of (a)
any modification, amendment, or assignment of the Lease or the Brokerage
Agreement, or (b) any transfer of the Property, or (c) any modification or
waiver of or change in any of the terms, covenants and conditions of the Lease
by Landlord and Tenant, or (d) any extension of time that may be granted by
Tenant and Landlord, or Tenant's Broker and Landlord, respectively, or (e) any
consent, release, indulgence or other action, inaction or omission under or in
respect of the Lease or the Brokerage Agreement, respectively, or (f) any
dealings or transactions or matter or thing occurring between Landlord and
Tenant, including without limitation, any sublet of the Premises or portion
thereof, or (g) any bankruptcy, insolvency, reorganization, liquidation,
arrangement, assignment for the benefit of creditors, receivership, trusteeship
or similar proceeding affecting Landlord, whether or not notice thereof is given
to Guarantor. Notwithstanding anything to the contrary herein contained, with
the exception of the matters described in clause (g) above, Tenant shall have no
greater rights against Guarantor than it would have against Landlord or
Landlord's successors or assigns and the liability of Guarantor shall be
co-extensive with that of Landlord and Landlord's successors or assigns.
Should Tenant be obligated by any bankruptcy or other law to repay
to Landlord or to Guarantor or to any trustee, receiver or other representative
of either of them, any amounts previously paid, this Guaranty shall be
reinstated in the amount of such repayments. Tenant shall not be required to
litigate or otherwise dispute its obligations to make such payments if it in
good faith believes that such obligation exists.
No delay on the part of Tenant or the Tenant's Broker in exercising
any right, power or privilege under this Guaranty or failure to exercise the
same shall operate as a waiver of or otherwise affect any such right, power or
privilege, nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing, signed by
Tenant with respect to the Landlord's Contribution Obligation and/or the
Tenant's Broker with respect to the brokerage Obligation; nor shall any such
waiver be applicable except in the specific instance for which given.
All of Tenant's rights and remedies under the Lease and the Tenant's
Broker's rights under the Brokerage Agreement, respectively, and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
Tenant and Tenant's Broker shall, within ten (10) business days
after written request therefor by Landlord or Guarantor, provide Landlord and
Guarantor with a release,
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<PAGE> 141
certificate or other instrument reasonably satisfactory to the requesting party
evidencing the payment in whole or in part of the Landlord's Contribution
Obligation which may become payable in accordance with the terms and conditions
of the Lease or brokerage Obligation which may become due and payable in
accordance with the terms and conditions of the Brokerage Agreement.
Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Tenant or the Tenant's Broker on account of
the liability of Guarantor hereunder, Guarantor will notify Tenant or the
Tenant's Broker in writing that such payment or performance as the case may be,
is for such purpose. No such payment by Guarantor pursuant to any provision
hereof shall entitle Guarantor by subrogation or otherwise to the rights of
Tenant or the Tenant's Broker to any payment by Landlord or out of the property
of Landlord, except after payment by Landlord of all of the Obligations.
A Guarantor shall be deemed to be in default under this Guaranty if:
(i) Guarantor shall make any assignment for the benefit of
creditors, or pursuant to an order, judgment or decree entered by any court of
competent jurisdiction; or
(ii) a receiver, trustee or liquidator of Guarantor or of all
or substantially all of the assets of Guarantor shall be appointed; or
(iii) Guarantor shall be adjudicated a bankrupt or insolvent;
or
(iv) a petition seeking reorganization of a Guarantor or an
arrangement with creditors or a petition to take advantage of any insolvency law
shall be approved,
and in such event, Tenant shall have the right to offset the amount of any
unpaid Landlord's Contribution against the Rent payable under the Lease.
Each Guarantor agrees that he will, at any time and from time to
time, within ten (10) business days following written request by Tenant or the
Tenant's Broker, execute, acknowledge and deliver to Tenant or Tenant's Broker,
respectively, as the case may be, a statement certifying that this Guaranty is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating such
modification).
As a further inducement to Tenant to make and enter into the Lease
and in consideration thereof, each Guarantor covenants and agrees that in any
action or proceeding brought on, under or by virtue of this Guaranty, each
Guarantor shall and does hereby waive trial by jury. Without regard to
principles of conflicts of laws, the validity, interpretation, performance and
enforcement of this Guaranty shall be governed by and construed in
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accordance with the internal laws of the State of New Jersey.
In the event that this Guaranty shall be held ineffective or
unenforceable by any court of competent jurisdiction, then Guarantor shall be
deemed to be Landlord under Article 31 and Article 36 of the Lease with the same
force and effect as if Guarantor were expressly named as a joint Landlord
therein.
Each Guarantor warrants and represents to Tenant that he has the
legal right and capacity to execute this Guaranty.
This Guaranty shall be binding on and inures to the benefit of the
successors and assigns to the parties hereto. As used herein, the term
"successors and assigns" shall be deemed to include, but shall not be limited
to, the heirs, executors and legal representatives of Guarantor. If there is
more than one Guarantor, the liability hereunder shall be joint and several. All
terms and words used in this Guaranty, regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other
gender as the context may require.
Any notice, demand or request by Tenant or Guarantor shall be in
writing, and shall be deemed to have been duly given or made if either delivered
by hand (against a signed receipt), sent by certified or registered mail (return
receipt requested), by nationally recognized overnight courier, or by facsimile
transmission with a copy sent simultaneously by nationally recognized overnight
courier, addressed to Guarantor, at the address of the Landlord set forth in the
Lease, or Tenant, at the address for notices to Tenant set forth in the Lease.
Notices shall be deemed to have been duly rendered or delivered on the date when
the same shall have been hand delivered, three (3) business days from when the
same shall have been mailed as herein provided, on the date of delivery by
overnight courier, or if by facsimile transmission, the date of the confirmed
transmission. Any party may change its notice address by notice given to the
other party in accordance with this notice provision. The attorneys for each
party may, but are not obligated, to give notices on behalf of their clients.
If Guarantor fails to pay any amount payable under this Guaranty
when due, interest on such amount shall accrue at the Interest Rate (as defined
in the Lease); provided, however, that Landlord shall not be entitled to collect
interest under the Lease and interest under this Guaranty for the same
underlying obligation.
This Guaranty shall become null and void and of no further force and
effect at such time as the Obligations shall be satisfied.
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IN WITNESS WHEREOF, the undersigned have duly executed this Guaranty
as of the 21st day of December, 1998.
GUARANTOR:
/s/ Samuel J. LeFrak
-----------------------------------------
Samuel J. LeFrak
/s/ Richard S. LeFrak
-----------------------------------------
Richard S. LeFrak
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GUARANTY OF LEASE BY
7 UNITED STATES TRUST COMPANY OF NEW YORK
IN CONSIDERATION OF, and as an inducement for the granting,
execution and delivery of the lease, dated as of December 21, 1998 ("Lease"), by
NEWPORT OFFICE CENTER III COMPANY, LLC, a New Jersey limited liability company,
Landlord therein named ("Landlord," which term shall be deemed to include the
named Landlord and its successors and assigns) to U.S. TRUST COMPANY OF NEW
JERSEY, a New Jersey corporation, Tenant therein named ("Tenant," which term
shall be deemed to include the name Tenant and its successors and assigns), and
in further consideration of the sum of One ($1.00) Dollar and other good and
valuable consideration paid by Landlord to the undersigned, the receipt and
sufficiency of which are hereby acknowledged, the undersigned, UNITED STATES
TRUST COMPANY OF NEW YORK, a New York corporation, with an address at 114 West
47th Street, New York, New York 10036 Attention: Mr. Richard E. Morgan, Sr. Vice
President ("Guarantor," which term shall be deemed to include the named
Guarantor and its successors and assigns), hereby guarantees, absolutely and
unconditionally, to Landlord the full and prompt payment of all Rent (as defined
in the Lease) (including, without limitation, Landlord's legal expenses and
reasonable attorneys' fees and disbursements to which it is entitled under the
Lease) payable by Tenant under the Lease, and hereby further guarantees the full
and timely performance and observance of all the covenants, terms, conditions
and agreements therein provided to be performed and observed by Tenant; and
Guarantor hereby covenants and agrees to and with Landlord that if default shall
at any time be made by Tenant in the payment of any Rent, or if Tenant should
default or be deemed in default under the Lease or in the performance and
observance of any of the terms, covenants and conditions contained in the Lease,
Guarantor shall and will forthwith faithfully perform and fulfill all of such
terms, covenants and conditions and will forthwith pay to Landlord all damages
to which Landlord is entitled under the terms of the Lease that may arise in
consequence of any such default by Tenant under the Lease, together with all
reasonable attorneys' fees, and disbursements incurred by Landlord in the
enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment
(and not of collection) and of performance. The liability of Guarantor is
primary, is co-extensive with that of Tenant and any other guarantor of Tenant's
obligations under the Lease and this Guaranty shall be enforceable against
Guarantor without the necessity of any suit or proceeding on Landlord's part of
any kind or nature whatsoever against Tenant or any other guarantor and without
the necessity of any notice of nonpayment, nonperformance or nonobservance or of
any notice of acceptance of this Guaranty or of any other notice or demand to
which Guarantor might otherwise be entitled, all of which Guarantor hereby
expressly waives. Guarantor hereby expressly agrees that the validity of this
Guaranty and the
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obligations of Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of (a) the assertion or the failure to assert
by Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the terms, covenants and conditions of the Lease, or (b) any
nonliabilty of Tenant under the Lease by insolvency, discharge in bankruptcy, or
any other defect or defense which may now or hereafter exist in favor of Tenant.
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of (a) any assignment (by Landlord or Tenant), renewal, modification,
amendment or extension of the Lease or sublease of all or part of the Premises
(except with respect to a recapture by Landlord pursuant to the terms of Section
12.4 of the Lease or with respect to any assignment of the Lease from Tenant to
Guarantor), or (b) any modification or waiver of or change in any of the terms,
covenants and conditions of the Lease by Landlord and Tenant, or (c) any
extension of time that may be granted by Landlord to Tenant, or (d) any consent,
release, indulgence or other action, inaction or omission under or in respect of
the Lease or any other guaranty, or (e) any dealings or transactions or matter
or thing occurring between Landlord and Tenant, or (f) any bankruptcy,
insolvency, reorganization, liquidation, arrangement, assignment for the benefit
of creditors, receivership, trusteeship or similar proceeding affecting Tenant
or any other guarantor, whether or not notice thereof or of any thereof is given
to Guarantor. Notwithstanding anything to the contrary herein contained, with
the exception of the matters described in clause (f) above, Landlord shall have
no greater rights against Guarantor than it would have against Tenant or
Tenant's successors or assigns and the liability of Guarantor shall be
co-extensive with that of Tenant and Tenant's successors or assigns.
Should Landlord be obligated by any bankruptcy or other law to repay
to Tenant or to Guarantor or to any trustee, receiver or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of such repayments. Landlord shall not be required to litigate or
otherwise dispute its obligations to make such payments if it in good faith
believes that such obligation exists.
No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of or otherwise affect any such right, power or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
This Guaranty represents the entire agreement of Guarantor and
Landlord with respect to the subject matter hereof and there are no promises,
agreements, representations, warranties or undertakings with respect to this
Guaranty, the Lease of the Building except as set forth herein or in the Lease.
No waiver or modification of any provision of this Guaranty nor any termination
of this Guaranty shall be effective unless in writing, signed by Landlord; nor
shall any such waiver be applicable except in the specific instance for which
given.
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All of Landlord's rights and remedies under the Lease and under this
Guaranty or any other guaranty, now or hereafter existing at law or in equity or
by statute or otherwise, are intended to be distinct, separate and cumulative
and no exercise or partial exercise of any such right or remedy therein or
herein mentioned is intended to be in exclusion of or a waiver of any of the
others.
Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Landlord or perform or fulfill any term,
covenant or condition hereunder on account of the liability of Guarantor
hereunder, Guarantor will notify Landlord in writing that such payment or
performance as the case may be, is for such purpose. No such payment or
performance by Guarantor pursuant to any provision hereof shall entitle
Guarantor by subrogation or otherwise to the rights of Landlord to any payment
by Tenant or out of the property of Tenant, except after payment of all sums or
fulfillment of all covenants, terms, conditions or agreements to be paid or
performed by Tenant under the Lease.
Guarantor shall be deemed to be in default under this Guaranty and
Tenant shall be deemed in default under the Lease:
(i) Guarantor shall make any assignment for the benefit of
creditors, or pursuant to an order, judgment or decree entered by any court of
competent jurisdiction, or
(ii) a receiver, trustee or liquidator of Guarantor or of all
or substantially all of the assets of Guarantor shall be appointed, or
(iii) Guarantor shall be adjudicated a bankrupt or insolvent,
or
(iv) a petition seeking reorganization of Guarantor or an
arrangement with creditors or a petition to take advantage of any insolvency law
shall be approved,
unless, however, a substitute guarantor satisfactory to Landlord shall,
simultaneously with such event of default by Guarantor, execute and deliver to
Landlord a guaranty in the same form as this Guaranty.
Guarantor agrees that it will, at any time and from time to time,
within ten (10) business days following written request by Landlord, execute,
acknowledge and deliver to Landlord a statement certifying that this Guaranty is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating such
modification). Guarantor agrees that such certificate may be relied on by anyone
holding or proposing to acquire any interest in the "Premises" or "Building" (as
such terms are defined in the Lease) from or through Landlord or by any
mortgagee or prospective mortgagee of the Premises or Building or of any
interest therein.
As a further inducement to Landlord to make and enter into the Lease
and in
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consideration thereof, Landlord and Guarantor covenant and agree that in any
action or proceeding brought on, under or by virtue of this Guaranty, Landlord
and Guarantor shall and do hereby waive trial by jury. Without regard to
principles of conflicts of laws, the validity, interpretation, performance and
enforcement of this Guaranty shall be governed by and construed in accordance
with the internal laws of the State of New Jersey.
Guarantor warrants and represents to Landlord that it has the legal
right and capacity to execute this Guaranty. In the event that this Guaranty
shall be held ineffective or unenforceable by any court of competent
jurisdiction, then Guarantor shall be deemed to be a Tenant under the Lease with
the same force and effect as if Guarantor were expressly named as a joint Tenant
therein.
This Guaranty shall be binding on and inures to the benefit of the
successors and assigns to the parties hereto. As used herein, the term
"successors and assigns" shall be deemed to include, but shall not be limited
to, the heirs, executors and legal representatives of Guarantor. If there is
more than one Guarantor, the liability hereunder shall be joint and several. All
terms and words used in this Guaranty, regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other
gender as the context may require.
Any notice, demand or request by Landlord or Guarantor shall be in
writing, and shall be deemed to have been duly given or made if either delivered
by hand (against a signed receipt), sent by certified or registered mail (return
receipt requested), by nationally recognized overnight courier, or by facsimile
transmission with a copy sent simultaneously by nationally recognized overnight
courier, addressed to Guarantor or Landlord, which ever is applicable, at the
address for each such party set forth above. Notices shall be deemed to have
been duly rendered or delivered on the date when the same shall have been hand
delivered, three (3) business days from when the same shall have been mailed as
herein provided, on the date of delivery by overnight courier, or if by
facsimile transmission, the date of the confirmed transmission. Any party may
change its notice address by notice given to the other party in accordance with
this notice provision.
If Tenant holds over beyond the term of the Lease, the obligations
of Guarantor shall extend and apply to such holdover tenancy.
If any provision of this Guaranty, or the application thereof to any
person or circumstance, shall be to any extent held void, unenforceable or
invalid, then the remainder of this Guaranty, or the application of such
provision to persons or circumstances other than those as to which it is held
void, unenforceable or invalid, respectively, shall not be affected thereby, and
each provision of this Guaranty shall be valid and enforceable to the fullest
extent permitted by law.
If Guarantor fails to pay any amount payable under this Guaranty
when due,
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interest on such amount shall accrue at the Interest Rate (as defined in the
Lease); provided, however, that Landlord shall not be entitled to collect
interest under the Lease and interest under this Guaranty for the same
underlying obligation.
This Guaranty shall become null and void and of no further force and
effect at such time as all of the obligations of Tenant under the Lease shall
have been satisfied.
[signature on following page]
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<PAGE> 149
IN WITNESS WHEREOF, the undersigned have duly executed this Guaranty
as of the 21st day of December, 1998.
ATTEST: GUARANTOR:
UNITED STATES TRUST COMPANY OF
NEW YORK
/s/ Richard E. Morgan By: /s/ John M. Deignan
- -------------------------------- ------------------------------------
, Sr. Vice-President Name: John M. Deignan
Its: Executive Vice President
(Corporate Seal)
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[LETTERHEAD OF LEFRAK ORGANIZATION, INC.]
December 21, 1998
U.S. Trust
Company of New Jersey
114 West 47th Street
New York, New York 10036
Attn: Mr. Richard E. Morgan, Senior Vice President
Re: U. S. TRUST COMPANY OF NEW JERSEY ("Tenant")
Lease with Tenant dated December 21, 1998 (the "Lease") for the
premises consisting of the entire sixth (6th), seventh (7th) and
eighth (8th) floors (collectively, the "Premises") of Newport Office
Center III, 499 Washington Boulevard, Jersey City, New Jersey (the
"Building")
Gentlemen:
1. Reference is made to the Lease dated this date for the Premises in the
Building. Capitalized terms used in this letter agreement, unless defined
herein, shall have the meanings ascribed to them in the Lease.
2. In connection with your execution and delivery, this date, of the Lease
with Newport Office Center III Company, LLC, as "Landlord" under the Lease and a
"LeFrak Related Entity" (as hereinafter defined) to the undersigned, you have
requested that the undersigned provide you with this letter agreement regarding
the acquisition and development of a certain parcel of real estate located north
of the Building as more particularly shown and designated by cross-hatching on
the attached plot plan annexed to this letter agreement as Exhibit A and made a
part hereof (the "North Property"). The North Property is currently owned by
Newport Associates Development Company (the "North Property Owner") a
partnership of which an affiliate of Melvin Simon & Associates and a LeFrak
Related Entity are the co-managing partners.
<PAGE> 151
3. The undersigned represents that another LeFrak Related Entity (the
"North Property Option Holder") has entered into an option agreement dated as of
September 14, 1998 ("the North Property Option Agreement") with the North
Property Owner pursuant to which the North Property Option Holder has the right
to acquire the North Property from the North Property Owner in accordance with
the terms of the North Property Option Agreement. The undersigned has advised
you that the undersigned intends, at some time in the future to cause the North
Property Option Holder (or a successor LeFrak Related Entity) to acquire the
North Property from the North Property Owner and to develop and construct on the
North Property (by itself and/or with other LeFrak Related Entities), a first
class multi-story office building with retail premises to be known as Newport
Office Center IV (the "North Building"). At such time as the North Property
Option Holder or another LeFrak Related Entity acquires the North Property from
the North Property Owner, written notice of which transfer of ownership the
undersigned or such LeFrak Related Entity shall promptly provide to Tenant, the
North Property Owner shall be called the "LeFrak North Property Owner".
4. The undersigned has further advised you and hereby agrees with you in
this letter agreement that, provided at the time in question: (i) the LeFrak
North Property Owner acquires the North Property and constructs and develops the
North Building on the North Property; (ii) the North Building is not leased
solely to one tenant; (iii) the Lease is then in full force and effect and no
"Event of Default" (as defined in the Lease) shall have occurred and be
continuing thereunder; (iv) the Tenant under the Lease is either U.S. Trust
Company of New Jersey, United States Trust Company of New York or a Permitted
Tenant (as defined in the Lease); and (v) the Tenant under the Lease is then
leasing and occupying, and the Premises then consists of not less than all of
the space originally leased to Tenant pursuant to the Lease in the Building, the
undersigned shall, cause the LeFrak North Property Owner to enter into a lease
(the "North Lease") with Tenant or any Permitted Tenant for a full floor of
available office space, which floor shall be no lower than the second floor (the
"North Premises") in the North Building, together with an option to lease
parking spaces in a garage to be designated by the undersigned or the LeFrak
North Property Owner in the same proportion as parking spaces are provided
pursuant to the Lease with respect to the Option Space (as defined in the
Lease); provided that Tenant exercises its option to lease the North Premises as
provided in paragraph 6 below.
5. The North Lease shall, inter alia be (w) conterminous with the Lease,
(x) cross-defaulted with the Lease, (v) be substantially in the same from as the
Lease (except for those terms and conditions which are inapplicable or
irrelevant or which are otherwise set forth herein or which require modification
or amendment in order to reflect differences between the systems, services or
operations in the North Building from those in the Building in which the
Premises is located), and (z) the Rental Value for the North Premises shall be
an amount equal to 95% of the annual fair market rental value of the North
Premises, which shall be determined for vacant office space in the North
Building in the same manner set forth in ss. 2.7 of the Lease.
6. (a) The undersigned shall, or shall cause the LeFrak North Property
Owner to give the Tenant twelve (12) months prior written notice (the
"Completion Notice") of the anticipated date of "substantial completion" of the
"Phase I Base Building Work" in the North Building (as those terms are used and
defined in the Lease) the. Tenant shall give the party sending the Completion
Notice written notice ("Tenant's Election Notice") within sixty (60) days
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of Tenant's receipt of the Completion Notice as to whether Tenant elects to
lease the North Premises, which right of election Tenant hereby acknowledges and
agrees shall be effective only if and provided that all of Tenant's the terms
and provisions set forth in Paragraph 4 above have been met or complied with.
Notices shall be sent in the same manner as set forth in the Lease.
(b) If Tenant shall fail to deliver the Tenant's Election Notice
within the sixty (60) day time period set forth above, or shall elect not to
lease the North Premises, Tenant shall have no further right to lease the North
Premises and Tenant's option under this letter agreement with respect to the
leasing of the North Premises shall be deemed to be waived and become null and
void and of no further force and effect, and Landlord shall thereafter have the
unrestricted right to lease all or any portion of the North Building to any
person or entity upon such terms and conditions as Landlord shall deem
appropriate.
(c) If Tenant timely elects to lease the North Premises, the
undersigned shall have the right to substitute one full floor located above the
ground floor in the Building for the North Premises by giving written notice
(the "Substitution Notice") thereof to Tenant within thirty (30) days of the
receipt of Tenant's Election Notice by the LeFrak Related Entity that sent the
Completion Notice. If the undersigned fails to timely give the Substitution
Notice after Tenant has given the Election Notice, the undersigned shall be
deemed to have agreed to cause the LeFrak North Property Owner to Lease the
North Premises to Tenant. If the undersigned timely gives the Substitution
Notice, (a) the additional one full floor of the Building or NOC I above the
ground floor (the "New Space") shall be added to the Premises by an amendment to
the Lease which shall provide that all terms and conditions of the Lease, except
for those that are inapplicable or irrelevant, shall apply to the New Space and
the Rental Value for the New Space shall be an amount equal to 95% of the annual
fair market rental value of the New Space determined in the same manner as set
forth in ss. 2.7 of the Lease.
7. Notwithstanding anything to the contrary contained in this letter
agreement, you understand, acknowledge and agree that the rights and benefits in
this letter agreement regarding your right to enter into the North Lease in the
North Building, if constructed, have been granted solely to Tenant or any
Permitted Tenant under the lease for their sole and exclusive benefit for so
long as such entities are the owner of Tenant's estate and interest granted by
the Lease, and that no party other than Tenant or any Permitted Tenant shall be
entitled to any of the rights and benefits of this letter agreement or shall
have any right to enforce the terms and provisions hereof. Tenant may assign all
rights and benefits of this letter agreement to The United States Trust Company
of New York or any Permitted Tenant, and each of such parties shall have the
right to enforce Tenant's rights hereunder as if such party was specifically
named herein.
8. Further, the terms and provisions of this letter agreement and the
duties and obligations of the LeFrak Related Entity regarding your right to
enter into the North Lease in the North Building, if the North Property is
acquired by the LeFrak North Property Owner, and the North Building constructed,
shall not be deemed to run with the land on which the Building is constructed or
be enforced against Landlord under the Lease, the Building and/or the land on
which the Building is constructed. The LeFrak North Property Owner from and
after its acquisition of the North Property from the North Property Owner agrees
to be bound by the provisions of this letter agreement. If the LeFrak North
Property Owner (i) ground leases or
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transfers the North Property to another LeFrak Related Entity or (ii) enters
into an agreement with a LeFrak Related Entity to construct and hold title to
the North Building, the LeFrak North Property Owner shall cause such ground
lessee or other transferee to assume in writing the LeFrak North Property
Owner's obligations hereunder. If the North Property Option Holder assigns or
otherwise transfers its rights to acquire the North Property from the North
Property Owner under the North Property Option Agreement to another Lefrak
Related Entity, the North Property Option Holder shall cause such assignee or
other transferee to assume in writing the obligations of the North Property
Option Holder hereunder. The provisions of this letter agreement shall be
binding on the undersigned, the LeFrak North Property Owner and any
successor-in-interest to either of such entities, so long as such successor or
assignee is a LeFrak Related Entity. The terms and provisions of this letter
agreement shall run with the North Property from and after the date that title
to the North Property is acquired from the North Property Owner by the LeFrak
North Property Owner, and may be enforced against the undersigned, the LeFrak
North Property Owner, and any LeFrak Related Entities which are successors or
assigns thereof, as well as the North Property and the North Building, but shall
not be binding upon or enforceable against any other successor-in-interest or
assignee of any LeFrak Related Entity, including, but not limited to, any other
third-party owner of the North Building and/or the North Property, any
third-party Mortgagee under any third- party Mortgage and/or any third-party
Lessor of any third-party Superior Lease, encumbering the North Building and/or
the North Property, respectively, as the case may be.
9. Either of the parties shall have the right to cause a Memorandum of
this agreement to be recorded against the North Property, from and after the
date on which the Lefrak North Property Owner acquires fee title to the North
Property from the North Property Owner, and both parties agree to sign and
acknowledge the Memorandum and such other documents as may be required to record
same. Any memorandum shall include a statement as to the parties against whom
this agreement may be enforced. The party requesting recordation shall pay for
the same.
10. For purposes of this letter agreement, the following terms shall have
the meanings ascribed to them below: (a) Lefrak Related Entity shall mean
Landlord, Lefrak Organization, Inc. or any Affiliate thereof; (b) an Affiliate
of Landlord or LeFrak Organization, Inc. shall mean (i) any member or
combination of members of the "LeFrak Family" (as hereinafter defined), (ii) any
corporation, partnership, limited liability company or other entity controlled,
directly or indirectly, by any combination of members of the LeFrak Family or
(iii) a "LeFrak REIT" (as hereinafter defined); (c) the LeFrak Family shall mean
Samuel J. LeFrak, Richard S. LeFrak, their respective spouses, any descendants
of the foregoing and the spouses of such descendants or any trusts for the
benefit of any of the foregoing parties; (d) a LeFrak REIT shall mean an entity
operating as a real estate investment trust under the Internal Revenue Code of
1986, as amended (i) which is formed by the LeFrak Family, (ii) the board of
directors or board of trustees shall for at least two years after the formation
thereof, contain members of the LeFrak Family, (iii) and the largest
non-institutional shareholders of which after any initial public offering of
stock thereof shall be members of the LeFrak Family; and (e) control shall mean
the ownership, directly or indirectly, of voting capital stock or other
beneficial ownership interests in excess of 50%, and the possession of power to
direct or cause the direction of the management
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and policy of such corporation or other entity, whether through the ownership of
voting securities, by statute, according to the provisions of a contract, or
otherwise.
11. The undersigned represents and warrants that the LeFrak Organization,
Inc. is controlled by Messrs. Samuel J. LeFrak and Richard S. LeFrak.
12. The rights contained in this letter agreement must be exercised, if at
all, no late than twenty-one years from the date of this letter agreement.
If you concur with the foregoing terms and provisions of this letter
agreement, kindly signify your concurrence thereto by singing this letter
agreement in the lower left hand corner below in the space provided for your
signature.
Very truly yours,
LEFRAK ORGANIZATION, INC.
By: /s/ Richard S. LeFrak
---------------------------------
Richard S. LeFrak
President
THE UNDERSIGNED HEREBY
CONSENTS TO THE FOREGOING
TERMS AND PROVISIONS OF THIS
LETTER AGREEMENT THIS 21st
DAY OF December, 1998
U. S. TRUST COMPANY OF NEW JERSEY
By: /s/ [ILLEGIBLE]
------------------------------
5
<PAGE> 155
EXHIBIT A
NEWPORT SITE PLAN
[GRAPHIC OMITTED]
<PAGE> 156
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(LOGO)
THIS AGREEMENT (this "Agreement" made as of the 21st day of December,
1998, between LOGO NEWPORT LAND OWNERS LIMITED LIABILITY COMPANY, a New Jersey
limited liability company, having an office at 2 Sixth Street, Jersey City, New
Jersey 07302 ("Ground Lessor"); and U.S. TRUST COMPANY OF NEW JERSEY, a bank and
trust company organized under the laws of the State of New Jersey having an
address at 5 Vaughn Drive, Princeton, New Jersey 08543-5209 ("Office Tenant").
W I T N E S S E T H:
WHEREAS, Ground Lessor has entered into a ground lease dated as of July 7,
1998, with Newport Office Center III Company, LLC, a New Jersey limited
liability company ("Newport"), as lessee (which ground lease, as the same may
hereafter be modified, amended and supplemented is called the "Ground Lease"),
covering premises specified on Exhibit A annexed hereto and made a part hereof
and the improvements located or to be located thereon (collectively, the
"Premises"); and
WHEREAS, Newport has subleased the Premises to N.O.C. III Urban Renewal
Limited Liability Company ("N.O.C. III Urban"), a New Jersey limited liability
company, pursuant to a certain sublease agreement dated as of July 7, 1998 (the
"Sublease"); and
WHEREAS, the improvements to be constructed at the Premises (the
"Improvements") have been subleased back by N.O.C. III Urban to Newport pursuant
to a certain subleaseback agreement (the "Subleaseback") dated as of July 7,
1998; and
WHEREAS, the Office Tenant has entered into an undersublease with Newport
as "Office Landlord" with respect to certain office space in the Improvements
(the "Office Premises") under a certain office lease (the "Office Lease") dated
as of December 21, 1998; and
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration in hand paid, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. So long as the Office Tenant shall not be in default beyond the
expiration of any applicable grace and cure period in the performance of all
terms, covenants and conditions to be performed on its part under the Office
Lease, then in such event:
(a) Unless any applicable law requires same, Office Tenant shall not
be joined as a party defendant in any action or proceeding which may be
instituted or taken by the Ground Lessor for the purpose of terminating the
Ground Lease by reason of any default thereunder;
<PAGE> 157
provided, however, that if applicable law requires that Office Tenant shall be
joined as a party defendant, such joinder shall not be in derogation of any of
the rights of the Office Tenant under the Office Lease subject to the terms of
this Agreement.
(b) Office Tenant shall not be evicted from the Office Premises nor
shall any of Office Tenant's rights under the Office Lease be affected in any
way by reason of any default under the Ground Lease; and
(c) Office Tenant's estate under the Office Lease shall not be
terminated or disturbed by reason of any default, disaffirmance or termination
under the Ground Lease.
2. (a) If the Ground Lessor shall succeed to the rights of Office
Landlord, as landlord under the Office Lease, as a result of the termination of
all estates and interests which are subordinate to the Ground Lease, i.e., the
lessee's interest under the Ground Lease, the Sublease and the Subleaseback, as
the case may be, whether through possession or foreclosure action or delivery of
a new lease or deed, then Office Tenant shall attorn to and recognize the party
so succeeding to Office Landlord's rights under the Office Lease (the "Successor
Landlord"), as Office Tenant's landlord under the Office Lease, such attornment
to be effective and self-operative upon Successor Landlord's succeeding to the
interest of Office Landlord under the Office Lease without the execution of any
further instruments.
(b) Upon such attornment, the Office Lease shall continue in full
force and effect as, or as if it were, a direct lease between the Successor
Landlord and Office Tenant upon all of the terms, conditions and covenants as
are set forth in the Office Lease, all of which shall be applicable after such
attornment, except that the Successor Landlord shall not be, after the date on
which the Successor Landlord shall have taken possession of the
undersubleasehold premises and property wherein the Office Premises are located:
(1) liable for any previous act or omission of Landlord
under the Office Lease, except to the extent that a
default continues after the date of foreclosure or
purchase of the Office Premises (in which event such
default shall be deemed to have occurred on the date of
transfer of title to such premises); or
(2) subject to any credit, claim, counterclaim, demand,
defense or offset, not expressly provided for in the
Office Lease and asserted with reasonable promptness,
which Office Tenant may have or shall have theretofore
accrued to Office Tenant against Office Landlord; or
(3) bound by any previous modification of the Office Lease,
not expressly provided for in the Office Lease, or by
any previous
2
<PAGE> 158
prepayment of more than one (1) month's Fixed Rent to
Office Landlord (or its predecessors-in-interest),
unless such modification or prepayment shall have been
expressly approved in writing by Successor Landlord; or
(4) obligated to perform any alteration or improvements of
the Office Premises not expressly required under the
Office Lease; or
(5) responsible for any monies owing by Office Landlord to
the credit of Office Tenant; or
(6) bound by any obligation to make any payment to Office
Tenant, or be subject to any credits, except for
services, repairs, maintenance and restoration provided
for under the Office Lease to be performed after the
date of attornment; it being expressly understood,
however, that any Successor Landlord shall not be bound
by any obligation to make payment to Office Tenant with
respect to construction performed by or on behalf of
Office Tenant at the Office Premises; or
(7) required to remove any person occupying the Office
Premises, or any part thereof.
3. In the event that Ground Lessor shall succeed to the interest of Office
Landlord, as landlord under the Office Lease, Ground Lessor, in its capacity as
landlord thereunder, shall recognize Office Tenant and all of Office Tenant's
rights and privileges under the Office Lease and, subject to the provisions of
Section 2 of this Agreement, shall be obligated to perform all of Office
Landlord's obligations under the Office Lease.
4. The Office Lease is and shall remain subject and subordinate to the
Ground Lease and all renewals and replacements, extensions and modifications
thereof, subject to the terms and conditions of this Agreement. Office Tenant,
upon request, shall execute and deliver any certificate or other instrument,
which Ground Lessor may reasonably request, to confirm said subordination by
Tenant. If requested by Ground Lessor, Office Tenant shall enter into an
agreement pursuant to which Office Tenant shall attorn to Ground Lessor as a
direct tenant.
5. Office Tenant will give prompt written notice to Ground Lessor of any
default of Office Landlord in its obligations under the Office Lease, if such
default is of such a nature as to give Office Tenant a right to terminate the
Office Lease, to cease or reduce its payments of Fixed Rent or Additional Rent,
or to credit or offset any amounts against future Rent.
6. All notices, demands or requests made pursuant to, under, or by virtue
of this
3
<PAGE> 159
Agreement shall be in writing and mailed to the party to which the notice,
demand or request is being made by certified or registered mail, prepaid return
receipt requested, at its address set forth above, (a) in the case of Ground
Lessor, Attention: Richard S. LeFrak, Esq., with a copy sent in the manner
aforesaid to Howard C. Boris, Esq., c/o LeFrak Organization, Inc., 97-77 Queens
Boulevard, Rego Park, New York 11374, and (b) in the case of Office Tenant, to
U.S. Trust Company of New York, 114 West 47th Street, New York, New York 10036
Attention: Mr. Richard E. Morgan, with a copy sent in the manner aforesaid to
Carter, Ledyard & Milburn, 2 Wall Street, New York, New York 10005, Attention:
Barbara Block Brown, Esq. Any party may change the place that notices and
demands are to be sent by written notice delivered in accordance with this
Agreement.
7. All capitalized terms not otherwise defined herein shall have the same
meaning as ascribed to such terms in the Lease.
8. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto and their respective
successors and assigns.
9. This Agreement shall be governed by the laws of the State of New
Jersey, without giving effect to the principles of conflicts of laws.
4
<PAGE> 160
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto.
WITNESS/ATTEST: GROUND LESSOR:
LOGO NEWPORT LAND OWNERS LIMITED
LIABILITY COMPANY,
a New Jersey limited liability company
By: LOGO ENERGY LIMITED LIABILITY COMPANY,
an Oklahoma limited liability company,
a Member
/s/ Donald Olenick By: /s/ Richard S. LeFrak
- -------------------------------- ---------------------------------
Donald Olenick Richard S. LeFrak, a Member
OFFICE TENANT:
U.S. TRUST COMPANY OF NEW JERSEY
/s/ Barbara Block Brown By: /s/ Harry O'Mealia III
- -------------------------------- ---------------------------------
Name: Harry O'Mealia III
Its: President
5
<PAGE> 161
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Richard S. Lefrak,
who, being by me duly sworn on his oath, deposes and makes proof to my
satisfaction that he is a member of LOGO ENERGY LIMITED LIABILITY COMPANY, an
Oklahoma limited liability company, which is a member of LOGO NEWPORT LAND
OWNERS LIMITED LIABILITY COMPANY, a New Jersey limited liability company and the
entity that executed the within instrument; that the execution, as well as the
making of this instrument, has been duly authorized by the members of said
entities; that this instrument was signed and delivered by him as and for the
voluntary act and deed of LOGO ENERGY LIMITED LIABILITY COMPANY, as a member of
LOGO NEWPORT LAND OWNERS LIMITED LIABILITY, in the presence of deponent, who
thereupon subscribed his name thereto as attesting witness.
/s/ Charles John Honara
-----------------------------------
Notary Public
CHARLES JOHN HONARA
NOTARY PUBLIC, State of New York
No. 4794967
Qualified in New York County
Commission Expires August 31, 1999
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Harry O'Mealia III,
who, being by me duly sworn on his oath, deposes and makes proof to my
satisfaction that he is the President of U.S. TRUST COMPANY OF NEW JERSEY, the
entity that executed the within instrument; that he resides at 5 Vaughn
Drive, Princeton, NJ; and that he was authorized to execute the within
instrument by the bylaws of said corporation.
BARBARA BLOCK BROWN /s/ Barbara Block Brown
Notary Public, State of New York -----------------------------------
No. 02BR4722140 Notary Public
Qualified in Nassau County
Commission Expires Nov. 3O, 2000
6
<PAGE> 162
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05, 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No. 3660 and from
said point runs, thence;
9. Along said westerly sideline S 25(degrees)29'14" W a distance of 41.96
feet to a point of curvature in the same, thence;
10. Southerly along said westerly sideline and along a curve to the left
with a radius of 1300.00 feet and an arc distance of 359.98 feet and a central
angle of 15(degrees)51'56", chord bearing S 17(degrees)33'16" W and a chord
distance of 358.83 feet to a point, thence;
11. Leaving said westerly sideline of Washington Boulevard, N
83(degrees)27'19" W a distance of 186.92 feet to a point, thence;
12. N 06(degrees)15'42" E a distance of 390.56 feet to a point, thence;
13. S 83(degrees)44'18" E a distance of 271.00 feet to the POINT AND
PLACE OF BEGINNING.
Containing 85,534 square feet or 1.964 acres.
7
<PAGE> 163
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(NOC III)
THIS AGREEMENT (this "Agreement") made as of the 21st day of December,
1998, between NEWPORT OFFICE CENTER III COMPANY, LLC, a New Jersey limited
liability company, having an office at 2 Sixth Street, Jersey City, New Jersey
07302 ("Superior Lessor") and U.S. TRUST COMPANY OF NEW JERSEY, a bank and trust
company organized under the laws of the State of New Jersey, having an address
at 5 Vaughn Drive, Princeton, New Jersey 08543-5209 ("Office Tenant").
W I T N E S S E T H
WHEREAS, Logo Newport Land Owners Limited Liability Company, a New Jersey
limited liability company, has entered into a ground lease dated as of July 7,
1998, with Superior Lessor, as lessee (such ground lease, as the same may
hereafter be modified, amended and supplemented is called the "Ground Lease"),
covering premises specified on Exhibit A annexed hereto and made a part hereof
and the improvements located or to be located thereon (collectively, the
"Premises"); and
WHEREAS, Superior Lessor has subleased the Premises to NOC III Urban
Renewal Liability Company ("NOC III Urban"), a New Jersey limited liability
company, pursuant to a certain sublease agreement dated as of July 7, 1998 (the
"Sublease"); and
WHEREAS, the improvements at the Premises (the "Improvements") have been
subleased back by NOC III Urban to Superior Lessor pursuant to a certain
sublease agreement (the "Subleaseback") dated as of July 7, 1998; and
WHEREAS, the Office Tenant has entered into an undersublease with Superior
Lessor as "Office Landlord" with respect to certain office space in the
Improvements the ("Office Premises") under a certain office lease (the "Office
Lease") dated December 21, 1998.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration in hand paid, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. So long as the Office Tenant shall not be in default beyond the
expiration of any applicable grace and cure period in the performance of all
terms, covenants and conditions to be performed on its part under the Office
Lease, then in such event:
(a) Unless any applicable law requires same, Office Tenant shall not
be joined as party defendant in any action or proceeding which may be instituted
or taken by the Superior Lessor for the purpose of terminating the Sublease by
reason of any default thereunder; provided,
<PAGE> 164
however, that if applicable law requires that Office Tenant shall be joined as a
party defendant, such joinder shall not be in derogation of any of the rights of
the Office Tenant under the Office Lease subject to the terms of this Agreement.
(b) Office Tenant shall not be evicted from the Office Premises nor
shall any of Office Tenant's rights under the Office Lease be affected in any
way by reason of any default, disaffirmance or termination under the Sublease;
and
(c) Office Tenant's estate under the Office Lease shall not be
terminated or disturbed by reason of any default, disaffirmance or termination
under the Sublease.
2. (a) If the Superior Lessor shall succeed to the rights of Office
Landlord, as landlord under the Office Lease, as a result of the termination of
all estates and interests which are subordinate to the Sublease, i.e., the
lessee's interest under the Sublease and the Subleaseback, as the case may be,
whether through possession or foreclosure action or delivery of a new lease or
deed, then Office Tenant shall attorn to and recognize the party so succeeding
to Office Landlord's rights under the Office Lease (the "Successor Landlord"),
as Office Tenant's landlord under the Office Lease, such attornment to be
effective and self-operative upon Successor Landlord' succeeding to the interest
of Office Landlord under the Office Lease without the execution of any further
instruments.
(b) Upon such attornment, the Office Lease shall continue in full
force and effect as, or as if it were, a direct lease between the Successor
Landlord and Office Tenant upon all of the terms, conditions and covenants as
are set forth in the Office Lease, whether accruing prior to or after such
attornment.
3. In the event that Superior Lessor shall succeed to the interest of
Office Landlord, as landlord under the Office Lease, Superior Lessor, in its
capacity as landlord thereunder, shall recognize Office Tenant and all of Office
Tenant's rights and privileges under the Office Lease and, subject to the
provisions of Section 2 of this Agreement, shall be obligated to perform all of
Office Landlord's obligations under the Office Lease.
4. The Office Lease is and shall remain subject and subordinate to the
Sublease and all renewals and replacements, extensions and modifications
thereof, subject to the terms and conditions of this Agreement. Office Tenant,
upon request, shall execute and deliver any certificate or other instrument,
which Superior Lessor may reasonably request, to confirm said subordination by
Tenant. If requested by Superior Lessor, Office Tenant shall enter into an
agreement pursuant to which Office Tenant shall attorn Superior Lessor as a
direct tenant.
5. Office Tenant will give prompt written notice to Superior Lessor of any
default of Office Landlord in its obligations under the Office Lease, if such
default is of such a nature as to give Office Tenant a right to terminate the
Office Lease, to cease or reduce its payments of Fixed Rent or Additional Rent,
or to credit or offset any amounts against future Rent; provided,
<PAGE> 165
however, that so long as the Superior Lessor shall be the same entity as, or
"related entity" to, the Office Landlord, then notice given by Office Tenant
under the Office Lease shall be deemed to be notice given to the Superior
Lessor..
6. All notices, demands or requests made pursuant to, under, or by virtue
of this Agreement shall be in writing and mailed to the party to which the
notice, demand or request is being made by certified or registered mail, prepaid
return receipt requested, at its address set forth above, (a) in the case of
Ground Lessor, Attention: Richard S. LeFrak, Esq., with a copy sent in the
manner aforesaid to Howard C. Boris, Esq., c/o LeFrak Organization, Inc., 97-77
Queens Boulevard, Rego Park, New York 11374, and (b) in the case of Office
Tenant, to U.S. Trust Company of New York, 114 West 47th Street, New York 10036
Attention: Mr. Richard E. Morgan, with a copy sent in the manner aforesaid to
Carter, Ledyard & Milburn, 2 Wall Street, New York, New York 10005 Attention:
Barbara Block Brown, Esq. Any party may change the place that notices and
demands are to be sent by written notice delivered in accordance with this
Agreement.
7. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto and their respective
successors and assigns.
8. All capitalized terms not otherwise defined herein shall have the same
meaning as ascribed to such terms in the Lease.
9. This Agreement shall be governed by the laws of the State of New
Jersey, without giving effect to the principles of conflicts of laws.
<PAGE> 166
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto.
WITNESS/ATTEST: SUPERIOR LESSOR:
NEWPORT OFFICE CENTER III COMPANY,
LLC, a New Jersey limited liability
company
By: NOC III REALTY CORP.
a New Jersey corporation, a Member
/s/ Donald Olenick By: /s/ Richard S. LeFrak
- --------------------------- ---------------------------------------
Donald Olenick Name: Richard S. LeFrak
Its: President
OFFICE TENANT:
U.S. TRUST COMPANY OF NEW JERSEY
/s/ Barbara Block Brown By: /s/ Harry O'Mealia III
- --------------------------- ---------------------------------------
Name: Harry O'Mealia III
Its: President
<PAGE> 167
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Donald Olenick, who,
being by me duly sworn on his oath, deposes and makes proof to my satisfaction
that he is the Assistant Secretary of N.O.C. III REALTY CORP. a New Jersey
corporation and the corporation named in the within instrument, which is a
member corporation of NEWPORT OFFICE CENTER III COMPANY, LLC, a New Jersey
limited liability company, and the entity that executed the within instrument;
that Richard S. LeFrak is President of said corporation; that the execution, as
well as the making of this instrument, has been duly authorized by a proper
resolution o the Board of Directors of said corporation; and that the instrument
was signed and delivered by Richard S. LeFrak as and for the voluntary act and
deed of said corporation, as a member of NEWPORT OFFICE CENTER III COMPANY, LLC,
a New Jersey limited liability company, in the presence of deponent, who
thereupon subscribed his name thereto as attesting witness.
/s/ Charles John Honara
-----------------------------------
Notary Public
CHARLES JOHN HONARA
NOTARY PUBLIC, State of New York
No. 4794967
Qualified in New York County
Commission Expires August 31, 1999
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Harry O'Mealia III,
who, being by me duly sworn on his oath, deposes and makes proof to my
satisfaction that he is the President of U.S. TRUST COMPANY OF NEW JERSEY and
the entity that executed the within instrument; that he resides at 5 Vaughn
Drive, Princeton, NJ; and that he was authorized to execute the within
instrument by the bylaws of said corporation.
BARBARA BLOCK BROWN /s/ Barbara Block Brown
Notary Public, State of New York -----------------------------------
No. 02BR4722140 Notary Public
Qualified in Nassau County
Commission Expires Nov. 3O, 2000
<PAGE> 168
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05, 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No. 3660 and from
said point runs, thence;
a. Along said westerly sideline S 25(degrees)29'14" W a distance of 41.96
feet to a point of curvature in the same, thence;
b. Southerly along said westerly sideline and along a curve to the left
with a radius of 1300.00 feet and an arc distance of 359.98 feet and a central
angle of 15(degrees)51'56", chord bearing S 17(degrees)33'16" W and a chord
distance of 358.83 feet to a point, thence;
c. Leaving said westerly sideline of Washington Boulevard, N
83(degrees)27'9" W a distance of 186.92 feet to a point, thence;
d. N 06(degrees)15'42" E a distance of 390.56 feet to a point, thence;
e. S 83(degrees)44'18" E a distance of 271.00 feet to the POINT AND PLACE
OF BEGINNING.
Containing 85,534 square feet or 1.964 acres.
<PAGE> 169
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(NOC III URBAN)
THIS AGREEMENT (this "Agreement") made as of the 21st day of December,
1998, between NOC III URBAN RENEWAL LIMITED LIABILITY COMPANY, a New Jersey
limited liability company, having an office at 2 Sixth Street, Jersey City, New
Jersey 07302 ("Superior Lessor") and U.S. TRUST COMPANY OF NEW JERSEY, a bank
and trust company formed under the laws of the State of New Jersey, having an
address at 5 Vaughn Drive, Princeton, New Jersey ("Office Tenant").
W I T N E S S E T H:
WHEREAS, Logo Newport Land Owners Limited Liability Company, a New Jersey
limited liability company, has entered into a ground lease dated as of July 7,
1998 with Newport Office Center III Company, LLC, ("Newport"), a New Jersey
limited liability company as lessee (such ground lease, as the same may
hereafter be modified, amended and supplemented is called the "Ground Lease"),
covering premises specified on Exhibit A annexed hereto and made a part hereof
and the improvements located or to be located thereon (collectively, the
"Premises"); and
WHEREAS, Newport has subleased the Premises to Superior Lessor pursuant to
a certain sublease agreement dated as of July 7, 1998 (the "Sublease"); and
WHEREAS, the improvements at the Premises (the "Improvements") have been
subleased back by Superior Lessor to Newport pursuant to a certain subsublease
agreement (the "Subleaseback") dated as of July 7, 1998; and
WHEREAS, the Office Tenant has entered into an undersublease with Newport
as "Office Landlord" with respect to certain office space in the Improvements
(the "Office Premises") under a certain office lease (the "Office Lease") dated
December 21, 1998.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration in hand paid, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. So long as the Office Tenant shall not be in default beyond the
expiration of any applicable grace and cure period in the performance of all
terms, covenants and conditions to be performed on its part under the Office
Lease, then in such event:
(a) Unless any applicable law requires same, Office Tenant shall not
be joined as party defendant in any action or proceeding which may be instituted
or taken by the Superior Lessor for the purpose of terminating the Subleaseback
by reason of any default thereunder;
<PAGE> 170
provided, however, that if applicable law requires that Office Tenant shall be
joined as a party defendant, such joinder shall not be in derogation of any of
the rights of the Office Tenant under the Office Lease subject to the terms of
this Agreement.
(b) Office Tenant shall not be evicted from the Office Premises nor
shall any of Office Tenant's rights under the Office Lease be affected in any
way by reason of any default under the Subleaseback; and
(c) Office Tenant's estate under the Office Lease shall not be
terminated or disturbed by reason of any default, disaffirmance or termination
under the Subleaseback.
2. (a) If the Superior Lessor shall succeed to the rights of Office
Landlord, as landlord under the Office Lease, as a result of the termination of
the Subleaseback, whether through possession or foreclosure action or delivery
of a new lease or deed, then Office Tenant shall attorn to and recognize the
party so succeeding to Office Landlord's rights under the Office Lease (the
"Successor Landlord"), as Office Tenant's landlord under the Office Lease, such
attornment to be effective and self-operating upon Successor Landlord's
succeeding to the interest of Office Landlord under the Office Lease without the
execution of any further instruments.
(b) Upon such attornment, the Office Lease shall continue in full
force and effect as, or as if it were, a direct lease between the Successor
Landlord and Office Tenant upon all of the terms, conditions and covenants as
are set forth in the Office Lease, all of which shall be applicable after such
attornment, except that the Successor Landlord shall not be, after the date on
which the Successor Landlord shall have taken possession of the
undersubleasehold premises and property wherein the Office Premises are located:
(1) liable for any previous act or omission of Landlord
under the Office Lease, except to the extent that a
default continues after the date of foreclosure or
purchase of the Office Premises (in which event such
default shall be deemed to have occurred on the date of
transfer of title to such premises); or
(2) subject to any credit, claim, counterclaim, demand,
defense or offset, not expressly provided for in the
Office Lease and asserted with reasonable promptness,
which Office Tenant may have or shall have theretofore
accrued to Office Tenant against Office Landlord; or
(3) bound by any previous modification of the Office Lease,
not expressly provided for in the Office Lease, or by
any previous prepayment of more than one (1) month's
Fixed Rent to Office
2
<PAGE> 171
Landlord (or its predecessors-in-interest), unless such
modification or prepayment shall have been expressly
approved in writing by Successor Landlord; or
(4) obligated to perform any alteration or improvements of
the Office Premises not expressly required under the
Office Lease; or
(5) responsible for any monies owing by Office Landlord to
the credit of Office Tenant; or
(6) bound by any obligation to make any payment to Office
Tenant, or be subject to any credits, except for
services, repairs, maintenance and restoration provided
for under the Office Lease to be performed after the
date of attornment; it being expressly understood,
however, that any Successor Landlord shall not be bound
by any obligation to make payment to Office Tenant with
respect to construction performed by or on behalf of
Office Tenant at the Office Premises; or
(7) required to remove any person occupying the Office
Premises, or any part thereof.
3. In the event that Superior Lessor shall succeed to the interest of
Office Landlord, as landlord under the Office Lease, Superior Lessor, in its
capacity as landlord thereunder, shall recognize Office Tenant and all of Office
Tenant's rights and privileges under the Office Lease and, subject to the
provisions of Section 2 of this Agreement, shall be obligated to perform all of
Office Landlord's obligations under the Office Lease.
4. The Office Lease is and shall remain subject and subordinate to the
Subleaseback and all renewals and replacements, extensions and modifications
thereof, subject to the terms and conditions of this Agreement. Office Tenant,
upon request, shall execute and deliver any certificate or other instrument,
which Superior Lessor may reasonably request, to confirm said subordination by
Tenant. If requested by Superior Lessor, Office Tenant shall enter into an
agreement pursuant to which Office Tenant shall attorn Superior Lessor as a
direct tenant.
5. Office Tenant will give prompt written notice to Superior Lessor of any
default of Office Landlord in its obligations under the Office Lease, if such
default is of such a nature as to give Office Tenant a right to terminate the
Office Lease, to cease or reduce its payments of Fixed Rent or Additional Rent,
or to credit or offset any amounts against future Rent.
6. All notices, demands or requests made pursuant to, under, or by virtue
of this Agreement shall be in writing and mailed to the party to which the
notice, demand or request is
3
<PAGE> 172
being made by certified or registered mail, prepaid return receipt requested, at
its address set forth above, (a) in the case of Ground Lessor, Attention:
Richard S. LeFrak, Esq., with a copy sent in the manner aforesaid to Howard C.
Boris, Esq., c/o LeFrak Organization, Inc., 97-77 Queens Boulevard, Rego Park,
New York 11374, and (b) in the case of Office Tenant, to U.S. Trust Company of
New York, 114 West 47th Street, New York, New York 10036 Attention: Mr. Richard
E. Morgan, with a copy sent in the manner aforesaid to Carter, Ledyard &
Milburn, 2 Wall Street, New York, New York 10005 Attention: Barbara Block Brown,
Esq. Any party may change the place that notices and demands are to be sent by
written notice delivered in accordance with this Agreement.
7. All capitalized terms not otherwise defined herein shall have the same
meaning as ascribed to such terms in the Lease.
8. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto and their respective
successors and assigns.
9. This Agreement shall be governed by the laws of the State of New
Jersey, without giving effect to the principles of conflicts of laws.
[signatures appear on following page]
4
<PAGE> 173
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto.
WITNESS/ATTEST: SUPERIOR LESSOR:
N.O.C. URBAN RENEWAL LIMITED LIABILITY
COMPANY, a New Jersey limited liability
company
By: N.O.C. REALTY CORP.
a Member
/s/ [ILLEGIBLE] By: /s/ Richard S. LeFrak
- ----------------------------------- ------------------------------
Name: Richard S. LeFrak
Its: President
OFFICE TENANT:
U.S. TRUST COMPANY OF NEW JERSEY
/s/ [ILLEGIBLE] By: /s/ Harry O'Mealia III
- ----------------------------------- ------------------------------
Name: Harry O'Mealia III
Its: President
5
<PAGE> 174
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Donald Henrick, who,
being by me duly sworn on his oath, deposes and makes proof to my satisfaction
that he is the Assistant Secretary of N.O.C. III REALTY CORP. a New Jersey
corporation and the corporation named in the within instrument, which is a
member corporation of N.O.C. III URBAN RENEWAL LIMITED LIABILITY COMPANY, a New
Jersey limited liability company and the entity that executed the within
instrument; that Richard S. LeFrak is President of said corporation; that the
execution, as well as the making of this instrument, has been duly authorized by
a proper resolution of the Board of Directors of said corporation; and that
deponent was signed and delivered by Richard S. LeFrak, President, as and for
the voluntary act and deed of said corporation, as a member of N.O.C. III URBAN
RENEWAL LIMITED LIABILITY COMPANY, in the presence of deponent, who thereupon
subscribed his name thereto as attesting witness.
/s/ Charles John Honara
----------------------------------
Notary Public
STATE OF NEW YORK ) CHARLES JOHN HONARA
ss: NOTARY PUBLIC, State of New York
COUNTY OF NEW YORK ) No. 4794967
Qualified in New York County
Commission Expires August 31, 1999
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Harry O'Mealia III,
who, being by me duly sworn on his oath, deposes and makes proof to my
satisfaction that he is the President of U.S. TRUST COMPANY OF NEW JERSEY, the
corporation named in the within instrument; that he resides at 5 Vaughn Drive,
Princeton, NJ; and that he was authorized to sign the within instrument by the
bylaws of said corporation.
BARBARA BLOCK BROWN
Notary Public, State of New York Barbara Block Brown
No. 02BR4722140 ----------------------------------
Qualified in Nassau County Notary Public
Commission Expires Nov. 30, 2000
6
<PAGE> 175
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT (this "Agreement") made as of the 21st day of December,
1998, between SJL NJ PROPERTIES HOLDING CORP., a New Jersey corporation, having
an office at 2 Sixth Street, Jersey City, New Jersey 07302 ("Mortgagee"); and
U.S. TRUST COMPANY OF NEW JERSEY, a bank and trust company formed under the laws
of the State of New Jersey, having an address at 5 Vaughn Drive, Princeton, New
Jersey ("Office Tenant").
W I T N E S S E T H:
WHEREAS, Logo Newport Land Owners Limited Liability Company, a New Jersey
limited liability company, Newport Office Center III Company, LLC, a New Jersey
limited liability company, and N.O.C. III Urban Renewal Limited Liability
Company, a New Jersey limited liability company (collectively, the "Mortgagor"),
have delivered a mortgage and security agreement dated as of July 7, 1998 to
Mortgagee, covering premises specified on Exhibit A annexed hereto and made a
part hereof and the improvements located or to be located thereon (collectively,
the "Premises"); and
WHEREAS, the Office Tenant has entered into a lease with Newport Office
Center III Company, LLC as "Office Landlord" with respect to certain office
space in the improvements located on the Premises (the "Office Premises") under
a certain office lease (the "Office Lease") dated as of December 21, 1998.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration in hand paid, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. So long as the Office Tenant shall not be in default beyond the
expiration of any applicable grace and cure period in the performance of all
terms, covenants and conditions to be performed on its part under the Office
Lease, then in such event:
(a) Unless any applicable law requires same, Office Tenant shall not
be joined as party defendant in any action or proceeding which may be instituted
or taken by the Mortgagee for the purpose of foreclosing the Mortgage by reason
of any default thereunder; provided, however, that if applicable law requires
that Office Tenant shall be joined as a party defendant, such joinder shall not
be in derogation of any of the rights of the Office Tenant under the Office
Lease subject to the terms of this Agreement.
(b) Office Tenant shall not be evicted from the Office Premises nor
shall any of Office Tenant's rights under the Office Lease be affected in any
way by reason of any default
<PAGE> 176
under the Mortgage; and
(c) Office Tenant's estate under the Office Lease shall not be
terminated or disturbed by reason of any default or foreclosure under the
Mortgage.
2. (a) If the Mortgagee shall succeed to the rights of Office Landlord, as
landlord under the Office Lease, whether through possession or foreclosure
action or delivery of a deed in lieu of foreclosure, then Office Tenant shall
attorn to and recognize the party so succeeding to Office Landlord's rights
under the Office Lease (the "Successor Landlord"), as Office Tenant's landlord
under the Office Lease, such attornment to be effective and self-operate upon
Successor Landlord's succeeding to the interest of Office Landlord under the
Office Lease without the execution of any further instruments.
(b) Upon such attornment, the Office Lease shall continue in full
force and effect as, or as if it were, a direct lease between the Successor
Landlord and Office Tenant upon all of the terms, conditions and covenants as
are set forth in the Office Lease, all of which shall be applicable after such
attornment, except that the Successor Landlord shall not be, after the date on
which the Successor Landlord shall have taken possession of the
undersubleasehold premises and property wherein the Office Premises are located:
(1) liable for any previous act or omission of Landlord
under the Office Lease, except to the extent that a
default continues after the date of foreclosure or
purchase of the Office Premises (in which event such
default shall be deemed to have occurred on the date of
transfer of title to such premises); or
(2) subject to any credit, claim, counterclaim, demand,
defense or offset, not expressly provided for in the
Office Lease and asserted with reasonable promptness,
which Office Tenant may have or shall have theretofore
accrued to Office Tenant against Office Landlord; or
(3) bound by any previous modification of the Office Lease,
not expressly provided for in the Office Lease, or by
any previous prepayment of more than one (1) month's
Fixed Rent to Office Landlord (or its
predecessors-in-interest), unless such modification or
prepayment shall have been expressly approved in writing
by Successor Landlord; or
(4) obligated to perform any alteration or improvements of
the Office Premises not expressly required under the
Office Lease; or
2
<PAGE> 177
(5) responsible for any monies owing by Office Landlord to
the credit of Office Tenant; or
(6) bound by any obligation to make any payment to Office
Tenant, or be subject to any credits, except for
services, repairs, maintenance and restoration provided
for under the Office Lease to be performed after the
date of attornment; it being expressly understood,
however, that any Successor Landlord shall not be bound
by any obligation to make payment to Office Tenant with
respect to construction performed by or on behalf of
Office Tenant at the Office Premises; or
(7) required to remove any person occupying the Office
Premises, or any part thereof.
3. In the event that Mortgagee shall succeed to the interest of Office
Landlord, as landlord under the Office Lease, Mortgagee, in its capacity as
landlord thereunder, shall recognize Office Tenant and all of Office Tenant's
rights and privileges under the Office Lease and, subject to the provisions of
Section 2 of this Agreement, shall be obligated to perform all of Office
Landlord's obligations under the Office Lease.
4. The Office Lease is and shall remain subject and subordinate to the
Mortgage and all renewals and replacements, extensions and modifications
thereof, subject to the terms and conditions of this Agreement. Office Tenant,
upon request, shall execute and deliver any certificate or other instrument,
which Mortgagee may reasonably request, to confirm said subordination by Tenant.
If requested by Mortgagee, Office Tenant shall enter into an agreement pursuant
to which Office Tenant shall attorn to Mortgagee as a direct tenant.
5. Office Tenant will give prompt written notice to Mortgagee of any
default of Office Landlord in its obligations under the Office Lease, if such
default is of such a nature as to give Office Tenant a right to terminate the
Office Lease, to cease or reduce its payments of Fixed Rent or Additional Rent,
or to credit or offset any amounts against future Rent.
6. All notices, demands or requests made pursuant to, under, or by virtue
of this Agreement shall be in writing and mailed to the party to which the
notice, demand or request is being made by certified or registered mail, prepaid
return receipt requested, at its address set forth above, (a) in the case of
Mortgagee, Attention: Richard S. LeFrak, Esq., with a copy sent in the manner
aforesaid to Howard C. Boris, Esq., c/o LeFrak Organization, Inc., 97-77 Queens
Boulevard, Rego Park, New York 11374, and (b) in the case of Office Tenant, to
U.S. Trust Company of New York, 114 West 47th Street, New York, New York 10036
Attention: Mr. Richard E. Morgan, with a copy sent in the manner aforesaid to
Carter, Ledyard & Milburn, 2 Wall Street, New York, New York 10005 Attention:
Barbara Block Brown, Esq. Any party may
3
<PAGE> 178
change the place that notices and demands are to be sent by written notice
delivered in accordance with this Agreement.
7. All capitalized terms not otherwise defined herein shall have the same
meaning as ascribed to such terms in the Office Lease.
8. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto and their respective
successors and assigns.
9. This Agreement shall be governed by the laws of the State of New
Jersey, without giving effect to the principles of conflicts of laws.
[signatures appear on following page]
4
<PAGE> 179
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto.
WITNESS/ATTEST: MORTGAGEE:
SJL NJ PROPERTIES HOLDING CORP.
a New Jersey corporation
/s/ [ILLEGIBLE] By: /s/ Richard S. LeFrak
- ----------------------------------- ------------------------------
Name: Richard S. LeFrak
Its: President
OFFICE TENANT:
U.S. TRUST COMPANY OF NEW JERSEY
By: /s/ Harry O'Mealia III
------------------------------
Name: Harry O'Mealia III
Its: President
5
<PAGE> 180
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Richard S LeFrak,
who, being by me duly sworn on his oath, deposes and makes proof to my
satisfaction that he is the President of SJL NJ PROPERTIES HOLDING CORP., the
corporation named in the within instrument; that he resides at Squabble Lane,
Southampton, N.Y.; and that he was authorized to sign the within instrument by
the bylaws of said corporation.
/s/ Charles John Honara
----------------------------------
Notary Public
CHARLES JOHN HONARA
NOTARY PUBLIC, State of New York
No. 4794967
Qualified in New York County
Commission Expires August 31, 1999
/s/ Charles John Honara
----------------------------------
Notary Public
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 21, 1998, before me, the subscriber, a
Notary Public of the State of New York, personally appeared Harry O'Mealia III,
who, being by me duly sworn on his oath, deposes and makes proof to my
satisfaction that he is the President of U.S. TRUST COMPANY OF NEW JERSEY, the
corporation named in the within instrument; that he resides at 5 Vaughn Drive,
Princeton, NJ; and that he was authorized to sign the within instrument by the
bylaws of said corporation.
BARBARA BLOCK BROWN
Notary Public, State of New York Barbara Block Brown
No. 02BR4722140 ----------------------------------
Qualified in Nassau County Notary Public
Commission Expires Nov. 30, 2000
6
<PAGE> 181
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05, 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No. 3660 and from
said point runs, thence;
a. Along said westerly sideline S25(degrees)29'14" W a distance of 4l.96
feet to a point of curvature in the same, thence;
b. Southerly along said westerly sideline and along a curve to the left
with a radius of 1300.00 feet and an arc distance of 359.98 feet and a central
angle of 15(degrees)51'56", chord bearing S 17(degrees)33'16" W and a chord
distance of 358.83 feet to a point, thence;
c. Leaving said westerly sideline of Washington Boulevard, N
83(degrees)27'19" W a distance of 186.92 feet to a point, thence;
d. N 06(degrees)15'42" E a distance of 390.56 feet to a point, thence;
e. S 83(degrees)44'18" E a distance of 271.00 feet to the POINT AND PLACE
OF BEGINNING.
Containing 85,534 square feet or 1.964 acres.
7
<PAGE> 182
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is entered into as of the 21st day of
December, 1998, by and between NEWPORT OFFICE CENTER III COMPANY, LLC, a New
Jersey limited liability company ("Landlord"), and U.S. TRUST COMPANY OF NEW
JERSEY, a bank and trust company formed under the laws of the State of New
Jersey ("Tenant").
1. Pursuant to an Agreement of Lease (the "Lease") executed by
Landlord and Tenant, dated as of December 21, 1998, Landlord has leased to
Tenant certain Premises which are part the building located at 499 Washington
Street, Jersey City, New Jersey, more particularly described in Exhibit A
attached hereto and made a part hereof by reference.
2. The term of the Lease shall commence on the Commencement Date set
forth in the Lease and shall expire upon the expiration of the last day of the
ninth (9th) calendar month following the fifteenth (15th) anniversary of the
Commencement Date as determined by the provisions of the Lease.
3. Tenant has an option to extend the term of the Lease for two (2)
periods of five (5) years each, as provided in Section 1.3 of the Lease, on the
same terms and conditions as stated in the Lease.
4. Tenant has options to expand the size of the Premises as more
particularly set forth in Article 39 of the Lease, on the terms and conditions
as set forth therein.
5. This Memorandum of Lease is subject to all of the terms,
conditions and understandings set forth in the Lease, which are incorporated
herein by reference and made a part hereof, as though copied verbatim herein. In
the event of a conflict between the terms and conditions of this Memorandum of
Lease and the terms and conditions of the Lease, the terms and conditions of the
Lease shall prevail.
6. This Memorandum may be executed in one or more counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same instrument.
EXECUTED as of the date first written above.
LANDLORD:
NEWPORT OFFICE CENTER III COMPANY, LLC, a
New Jersey limited liability company
By: NOC III Realty Corp., a New Jersey
corporation, a member
By:
----------------------------------------------
Name: Richard S. LeFrak
Title: President
TENANT
U.S. TRUST COMPANY OF NEW JERSEY, a bank and
trust company formed under the laws of the
State of New Jersey
By:
----------------------------------------------
Name: Harry O'Mealia III
Title: President
-1-
<PAGE> 183
ACKNOWLEDGMENTS
[LANDLORD]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK)
On the 21st day of December 1998, before me personally came Richard S
LeFrak to me known, who being by me duly sworn, did depose and say that he
resides at Squabble Lane, Southampton, New York, that he is the President of
NOC III REALTY CORP, a corporation which is a member of NEWPORT OFFICE CENTER
III COMPANY, LLC, and that he signed his name on behalf of said corporation, as
a member of the limited liability company, for and on behalf of said limited
liability company.
/s/ Charles John Honara
----------------------------------
Notary Public
CHARLES JOHN HONARA
NOTARY PUBLIC, State of New York
No. 4794967
Qualified in New York County
Commission Expires August 31, 1999
[CORPORATE TENANT]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the 21 day of December, 1998, before me personally came Harry O'Mealia
III, to me known, who being by me duly sworn, did depose and say that he resides
in 5 Vaughn Drive, Princeton, NJ, that he is the President of U.S. TRUST COMPANY
OF NEW JERSEY, the bank and trust company described in and which executed the
foregoing instrument, as TENANT; and that he signed his name thereto by order of
the bylaws of said company.
BARBARA BLOCK BROWN
Notary Public, State of New York Barbara Block Brown
No. 02BR4722140 ----------------------------------
Qualified in Nassau County Notary Public
Commission Expires Nov. 30, 2000
-2-
<PAGE> 184
Exhibit A to Memorandum of Lease
Legal Description
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05. 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No. 3660 and from
said point runs, thence;
a. Along said westerly sideline S25(degrees)29'14" W a distance of
41.96 feet to a point of curvature in the same, thence;
b. Southerly along said westerly sideline and along a curve to the left
with a radius of 1300.00 feet and an arc distance of 359.98 feet and
a central angle of 15(degrees)51'56", chord bearing S
17(degrees)33'16" W and a chord distance of 358.83 feet to a point,
thence;
c. Leaving said westerly sideline of Washington Boulevard, N
83(degrees)27'19" W a distance of 186.92 feet to a point, thence;
d. N 06(degrees)15'42" E a distance of 390.56 feet to a point, thence;
e. S 83(degrees)44'18" E a distance of 271.00 feet to the POINT AND
PLACE OF BEGINNING.
Containing 85,534 square feet or 1.964 acres.
-3-
<PAGE> 185
- --------------------------------------------------------------------------------
DATE [ILLEGIBLE]
[ACORD LOGO](TM) CERTIFICATE OF INSURANCE 12/15/98
- --------------------------------------------------------------------------------
PRODUCER
ALLIANCE BROKERAGE CORP.
990 WESTBURY RD
WESTBURY, NY 11590
516-333-7300
- --------------------------------------------------------------------------------
INSURED
N.O.C. III Construction Corp.
97-77 Queens Blvd.
Rego Park, NY 11374
- --------------------------------------------------------------------------------
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS
UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER
THE COVERAGE AFFORDED BY THE POLICIES BELOW.
- --------------------------------------------------------------------------------
COMPANIES AFFORDING COVERAGE
- --------------------------------------------------------------------------------
COMPANY
A ST. PAUL FIRE AND MARINE
- --------------------------------------------------------------------------------
COMPANY
B GREAT AMERICAN INSURANCE
- --------------------------------------------------------------------------------
COMPANY
C
- --------------------------------------------------------------------------------
COMPANY
D
- --------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR
OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS
SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
CO POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY) LIMITS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
GENERAL LIABILITY GENERAL AGGREGATE $
---------------------------------------
A |X| COMMERCIAL GENERAL LIABILITY TEP2185046 4/22/98 4/22/00 PRODUCTS-COMP/OP AGG $
---------------------------------------
|_|_| CLAIMS MADE |_| OCCUR PERSONAL & ADV INJURY $
---------------------------------------
|_| OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $
---------------------------------------
|_| ____________________________ FIRE DAMAGE (Any one fire) $
---------------------------------------
|_| ____________________________ MED EXP (Any one person) $
- ------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
COMBINED SINGLE LIMIT $
|_| ANY AUTO
---------------------------------------
|_| ALL OWNED AUTOS
BODILY INJURY $
|_| SCHEDULED AUTOS (Per person)
---------------------------------------
|_| HIRED AUTOS
BODILY INJURY $
|_| NON-OWNED AUTOS (Per accident)
---------------------------------------
|_| ____________________________
PROPERTY DAMAGE $
|_|
- ------------------------------------------------------------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY - EA. ACCIDENT $
---------------------------------------
|_| ANY AUTO OTHER THAN AUTO ONLY: $
---------------------------------------
|_| ____________________________ EACH ACCIDENT $
---------------------------------------
|_| AGGREGATE $
- ------------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE $
---------------------------------------
|_| UMBRELLA FORM AGGREGATE $
---------------------------------------
|_| OTHER THAN UMBRELLA FORM $
- ------------------------------------------------------------------------------------------------------------------------------------
WORKERS COMPENSATION AND |_| STATUTORY LIMITS
EMPLOYERS' LIABILITY ---------------------------------------
EACH ACCIDENT $
THE PROPRIETOR/ ---------------------------------------
PARTNERS/EXECUTIVE |_| INCL DISEASE - POLICY LIMIT $
OFFICERS ARE: |_| EXCL ---------------------------------------
DISEASE - EACH EMPLOYEE $
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER
A COMMERCIAL IM06501557 6/19/98 6/19/99 $43,000,000 PROJECT LIMIT
PROPERTY BUILDERS $64,200,000 CATASTROPHE LIMIT
RISK $5,000 DEDUCTIBLE
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
DESCRIPTION OF OPERATIONS, LOCATIONS, VEHICLES, SPECIAL ITEMS
PROPERTY POLICY ALLOWS FOR INSURED TO WAIVE RIGHTS OF SUBROGATION IN WRITING
PRIOR TO A LOSS
- --------------------------------------------------------------------------------
CERTIFICATE HOLDER
US TRUST CO. OF N.J.
5 VAUGHN DRIVE
PRINCETON, NJ 08543-5209
- --------------------------------------------------------------------------------
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE
TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE
SHALL IMPOSE NO OBLIGATION OR LIABILITY OR ANY KIND UPON THE COMPANY, ITS AGENTS
OR REPRESENTATIVES.
- --------------------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE 060530000
/s/ [ILLEGIBLE]
ACORD 25-S (3/93) ACORD CORPORATION 1993
- --------------------------------------------------------------------------------
<PAGE> 1
Exhibit 10.14
Amendments to the 1989 Stock Compensation Plan and Predecessor Plans
of U.S. Trust Corporation As Amended and Restated through July 1, 1997
RESOLVED that Section 4.4(e) of the Plan is hereby amended effective April
28, 1998 by replacing the reference to "15 days" with "2 business days".
RESOLVED that Section 4.6(c) of the Plan is hereby amended effective
January 1, 1998 to read as follows:
(c) A Participant may elect to have payment with respect to the Interest
Portion and the PSU Portion of his or her Account made in the form of a single
lump sum payment or in the form of a series of 5 or 15 annual installments. A
single lump sum payment shall consist of (i) a number of Common Shares equal to
the number of whole PSUs included in the balance of the PSU Portion of the
Participant's account, and (ii) cash in an amount equal to the sum of (A) the
balance of the interest portions of the Participant's account, and (B) an amount
determined by multiplying the fractional part, if any, of a PSU included in the
balance of the PSU Portion of the Participant's Account by the Average Market
Value of one Common Share on the Business Day immediately preceding the date on
which such payment is to be made. Such payment shall be made to the Participant
or, if the Participant's Account becomes payable by reason of his or her death,
to the Participant's Beneficiary. Payment shall be made on the last Business Day
of February of the Plan Year following the year in which the Participant's
employment with the Corporation and all of its Affiliated Companies terminates.
If payment is made in the form of a series of 5 or 15 annual installments,
payment shall be made in accordance with the provisions of Section 4.6(b)(i),
(ii), (iii) and (iv). An election under this Section 4.7(c) shall be made in
writing, on a form that is provided by the Committee for such purpose and that
is filed by the Participant with the Committee at least one year prior to the
date on which the Participant's employment with the Corporation and all of its
Affiliated Companies terminates. Any election so made may be revoked, and a new
election may be made hereunder after such revocation. Any such revocation or new
election shall be made in the same manner, and by the same date, as described in
the second preceding sentence. No election or revocation of an election made
hereunder shall be given effect unless it is made within the time prescribed
herein.
<PAGE> 1
Exhibit 10.16
Amendments to Benefit Equalization Plan of U.S. Trust Corporation
As Amended and Restated effective January 1, 1997
RESOLVED that Section 10(f)(v) of the Plan is hereby amended effective
April 28, 1998 by replacing the reference to "15 days" with "2 business days".
RESOLVED that Section 11(c) and (d) of the Plan is hereby amended
effective January 1, 1998 by replacing the reference to "10 annual installments"
with "5, 10 or 15 annual installments".
<PAGE> 1
Exhibit 10.17
Amendment to the Benefit Equalization Plan of
United States Trust Corporation
As Amended and Restated through January 1, 1997
RESOLVED that effective January 1, 1999 the Benefit Equalization Plan
("BEP") is amended to read as follows:
The last paragraph of Section 7 is amended by the addition of the
following;
"Notwithstanding the foregoing, a Participant who is a Managing Director
(or more senior executive); who has attained age 55; and has satisfied his
or her U.S. Trust stock ownership target, may elect that 100% of the
amount credited to his or her Participant Account for any Plan Year
commencing on or after January 1, 1999, be credited to the Cash Portion of
his or her Account by filing a written notice with the Committee."
<PAGE> 1
Exhibit 10.19
Amendments to the Board Members' Deferred Compensation Plan of U.S. Trust
Corporation As Amended and Restated through January 1, 1997
RESOLVED that Section 8(f)(5) of the Plan is hereby amended effective
April 28, 1998 by replacing the reference to "15 days" with "2 business days".
RESOLVED that Section 9(c) and (d) of the Plan is hereby amended January
1, 1998 by replacing the reference to "10 annual installments" with "5, 10 or 15
annual installments".
<PAGE> 1
Exhibit 10.22
Annual Incentive Plan Amendments
RESOLVED, that effective for Plan Years commencing on or after January 1,
1999, the Annual Incentive Plan of United States Trust Company of New York and
Affiliated Companies ("AIP") be, and it hereby is, amended as follows:
1. The definition of the term "ESOP Contribution" in Section 2 shall be
deleted;
2. The first paragraph of Section 5 is hereby deleted;
3. The second paragraph of Section 5 is amended to read as follows:
"The amount payable with respect to an Award under the Plan for any Plan
Year shall be paid to the Participant in cash as soon as practicable after
the end of such Plan Year, except to the extent that the Participant (a)
has elected, under the applicable provisions of the 401(k) Plan, to have
any portion of such Award reduced, and to have an amount equal to such
portion of the Award contributed to the 401(k) Plan on the Participant's
behalf and/or (b) has elected, under the applicable provisions of the
Executive Deferred Compensation Plan, to defer any portion of such Award.
4. Section 7(c) is hereby amended to read as follows:
"As soon as practicable following the Change in Control, all Awards which
are deemed to have been earned to the full and maximum extent upon the
occurrence of the Change in Control shall be payable in full in single
cash lump sums, reduced by any taxes withheld pursuant to Section 8."
RESOLVED, the appropriate officers of the Trust Company be, and each of them
hereby is, authorized and directed to execute such documents and take any and
all other action as any of such officers may, with the advice of counsel, deem
necessary or desirable to carry out the purposes and intent of the foregoing
resolution.
<PAGE> 1
Exhibit 10.26
Amendments to Executive Deferred Compensation Plan of U.S. Trust Corporation
As Amended and Restated effective July 1, 1997
RESOLVED that Section 5 (d)(v) of the Plan is hereby amended effective
April 28, 1998 by replacing the reference to "15 days" with "2 business days".
RESOLVED that Section 6(c) and (d) of the Plan is hereby amended effective
January 1, 1998 by replacing the reference to "10 annual installments" with "5
10 or 15 annual installments".
<PAGE> 1
Exhibit 10.27
Amendment to the Executive Deferred Compensation Plan of U.S. Trust Corporation
As Amended and Restated effective July 1, 1997
RESOLVED that the Executive Deferred Compensation Plan (the "EDCP") is
hereby amended effective January 1, 1999 to read as follows:
1. The definition of Account is amended to read as follows:
"Account" shall mean the accounts established and maintained for a
Participant pursuant to Section 4.
2. The definition of Eligible Compensation is amended to read as follows:
"Eligible Compensation" shall mean, with respect to any Eligible Officer
for any Plan Year beginning on or after January 1, 1999, (i) the portion
of any Award that becomes payable in cash to the Eligible Officer during
such year as reduced by any amount that is contributed to the 401(k) Plan
on the Eligible Officer's behalf with respect to such Award pursuant to
the Eligible Officer's election under the applicable provisions of the
401(k) Plan; (ii) the portion of any commissions (including any "trail"
commissions and any commission "overrides") that is payable in cash to the
Eligible Officer during such year (but, in the case of any amount payable
during such year with respect to commissions that were earned prior to the
start of such year, only to the extent of such of those commissions as
were earned after the date on which the Eligible Officer filed his or her
deferral election for such year under Section 3), exclusive of the amount
of any such commissions that are included in the Eligible Officer's base
compensation for any Plan Year pursuant to the Eligible Officer's
election, and (iii) the portion of any bonus or incentive payments that is
payable in cash to the Eligible Officer pursuant to any employment
agreement between the Eligible Officer and the Corporation or any of its
Affiliated Companies, to the extent earned during such year, regardless of
the year in which such bonus or incentive payments are payable.
3. The following shall be inserted prior to the last sentence of the first
paragraph of Section 4. Accounts:
"A separate account shall be maintained on the books and records of the
Corporation, for bookkeeping purposes only, for the amount of any Award
deferred under this Plan pursuant to Section 6(i) of the Executive
Incentive Plan of U.S. Trust Corporation ("EIP").
4. Section 4(d) is hereby amended by the addition of the following:
"Notwithstanding any provision herein to the contrary, the amount of any
Award deferred under this Plan pursuant to Section 6(i) of the EIP, shall
become vested on the fifth anniversary of the date of grant under the EIP
or if earlier, on the date of
<PAGE> 2
the Participant's death, permanent disability, or retirement on or after
the date on which the Participant attains age 65, or upon a Change in
Control. Such amount shall be forfeited in the event the Participant's
employment terminates prior to vesting, except to the extent the Committee
in its discretion otherwise determines."
<PAGE> 1
Exhibit 10.29
Amendments to the Executive Incentive Plan of
United States Trust Corporation
As Amended and Restated through January 1, 1997
RESOLVED that the Executive Incentive Plan ("EIP") shall be amended
effective January 1, 1999 as follows:
1. The definition of the term "ESOP Contribution" in Section 2 shall be
deleted;
2. Section 6(a) is hereby amended to read as follows:
"The amount payable with respect to a Participant's Award for any Plan
Year beginning on or after January 1, 1999, shall be the total amount of
the Award earned by the Participant."
3. Section 6 is hereby amended by the addition of a new Section 6(i):
"Notwithstanding the foregoing provisions of this Section 6, a Participant
who is a Managing Director (or more senior executive); who has attained
age 60; and holds more than twice his or her U.S. Trust stock ownership
target, may elect to receive the Restricted Unit Portion of his or her
grant in cash by filing a written notice with the Committee. Such election
shall provide for the deferral of payment of such cash amount. Such cash
amount shall become vested on the fifth anniversary of the date of grant,
or if earlier, on the date of the Participant's death, permanent
disability, or retirement on or after the date on which the Participant
attains age 65, and shall be forfeited in the event the Participant's
employment terminates prior to the vesting, except to the extent the
Committee in its discretion otherwise determines."
4. Section 9(c) is hereby amended to read as follows:
"As soon as practicable following the Change in Control, all Awards which
are deemed to have been earned to the full and maximum extent upon the
occurrence of the Change in Control shall be payable in full in single
cash lump sums, reduced by any taxes withheld pursuant to Section 10."
<PAGE> 1
Exhibit 10.33
Amendments to the Deferred Restricted Unit Plan of U.S. Trust Corporation
As Amended and Restated through January 1, 1997
RESOLVED that Section 6(c) and (d) of the Plan is hereby amended effective
January 1, 1998 by replacing the reference to "10 annual installments" with "5,
10 or 15 annual installments".
<PAGE> 1
Exhibit 13
MANAGEMENT'S DISCUSSION AND ANALYSIS
- -------------------------------------------------------
FINANCIAL REPORTING MATTERS
Management's Discussion and Analysis should be read in conjunction with the
Consolidated Financial Statements. The financial information presented in
Management's Discussion and Analysis has been prepared on a basis consistent
with the financial accounting policies set forth in the Consolidated Financial
Statements.
In this Form 10-K we make certain forward-looking statements with respect
to the financial condition, results of operations and business of U.S. Trust
Corporation (individually, the "Parent") and its wholly owned subsidiaries
(collectively with the Parent, the "Corporation"). These statements may be made
directly in this document or may be "incorporated by reference" to other
documents. These forward-looking statements may contain words such as
"believes," "expects," "anticipates," "estimates" or similar expressions.
We caution that these statements are not guarantees of future performance.
They involve a number of risks and uncertainties that are difficult to predict.
Among the factors that may cause actual results to differ materially from those
expressed or implied in the forward-looking statements are the following:
- - General economic or business conditions, including the fluctuations in the
equity, fixed income and real estate markets, may be less favorable than
expected. Such economic environments could result in, among other things, a
reduced demand for asset management or other financial services, or a decline
in assets under management over an extended time period, both of which could
negatively impact fee revenues.
- - Competitive pressures in the investment or asset management, corporate
fiduciary or private banking industries may increase significantly.
- - Legislative changes, including but not limited to legislation related to
income and estate tax matters and regulatory changes in banking or other
businesses that the Corporation engages in, may adversely affect its financial
condition.
- - Technological changes, including changes to address "Year 2000" data systems
issues, may be more difficult or expensive to implement than anticipated.
- -------------------------------------------------------
FINANCIAL PERFORMANCE OBJECTIVES
Management evaluates five financial performance objectives on a continual basis.
The financial performance objectives are not quarterly targets; rather, they
represent management's current assessment of the long-term capabilities of the
Corporation in the present environment. Interim period results may exceed or
fall short of meeting some or all of these financial performance objectives.
Such results may not necessarily be indicative that a change should be made in
the Corporation's long-term financial performance objectives, but more likely
would be indicative of specific transactions or events that occurred within a
given period. However, external facts and circumstances, including changes in
banking regulations and income tax policies, may occur and require the
Corporation to adjust its long-term financial performance objectives.
- -------------------------------------------------------
Total Revenues
Total revenues are expected to increase in the range of 8% to 12% per year.
Management believes that total revenues will grow at the upper end of this range
over the foreseeable future. Total revenues increased by over 18% during 1998
and approximately 15% during 1997. Revenue growth in both 1998 and 1997 was a
result of strong new business and the overall appreciation in the equity and
bond markets during these periods.
There are several factors that either will contribute to or impede the
Corporation from meeting and maintaining this financial performance objective.
Fee revenue growth is enhanced through direct sales efforts, additions to
existing customer relationships, further national expansion and selected
penetration in existing geographic markets, targeted acquisitions and market
appreciation. Fee revenue growth is adversely affected by distributions of funds
from client accounts, lost business relationships and market depreciation.
Changes in personal, capital gains or estate tax laws, regulations and other
external factors will also affect the rate of fee revenue growth.
The level of net interest revenue is dependent upon several factors,
including, loan demand, credit quality, regulatory capital requirements, federal
and state income tax policies and the Federal Reserve Board's interest rate
setting policies.
- -------------------------------------------------------
Pre-Tax Margin
Management believes that the Corporation can meet its objective to improve
pre-tax margin to 25% over the next several years. The Corporation's pre-tax
margin was 22.9% for 1998, 22.4% for 1997 and 21.5% for 1996. The Corporation's
ability to achieve this financial objective will be based upon several factors,
including the growth rate of total revenues, continued control over recurring
operating expenses, the pace of investment in national
37
<PAGE> 2
expansion and the maturation of prior years national expansion efforts. Barring
an extreme and prolonged market decline, management anticipates that achieving
this financial objective will constrain neither its national expansion program
nor its selective acquisitions of investment advisors in strategic geographic
locations.
- -------------------------------------------------------
Earnings Per Share
Management believes that the operating leverage resulting from meeting its
revenue and pre-tax margin objectives will enable the Corporation to increase
diluted earnings per share in the range of 15% to 20% per year. Several factors,
including statutory changes in federal, state and local corporate income tax
rates, common stock repurchases and the dilutive effect of stock options, will
affect this financial performance objective. Diluted earnings per share improved
by 23.8% during 1998 and 22.6% during 1997.
- -------------------------------------------------------
Return on Stockholders' Equity
Management has set the Return on Stockholders' Equity ("ROE") objective to reach
and exceed 25% over the next several years. ROE for 1998 was 26.2%, 22.8% in
1997 and 21.0% in 1996.
- -------------------------------------------------------
Dividend Pay Out Ratio
The Corporation's dividend pay out ratio is anticipated to range between 25% and
35% of annual net income. Retained capital will be available for acquisitions,
business expansion, stock buy back programs and other management initiatives. In
periods in which earnings per share growth exceeds its expected range, the
dividend pay out ratio likely will be either at the lower end or below the
targeted range. The dividend payout ratio was 24.3% during 1998, 25.1% during
1997 and 25.6% during 1996.
- -------------------------------------------------------
THE BUSINESSES OF U.S. TRUST
U.S. Trust Corporation has two principal businesses: Personal Wealth Management
Services and Institutional Services, both of which are intensely competitive.
Personal Wealth Management Services is further delineated into two
components -- New York Wealth Management Services ("New York") and National
Wealth Management Services ("National").
Principal competitors of the Corporation are other investment management
companies, brokerage firms, mutual fund companies and banking institutions. No
one competitor or industry dominates the markets in which the Corporation
engages. The following provides a description of the services provided by these
businesses and their markets. This section should be read in conjunction with
the accompanying Consolidated Financial Statements and Note 2 "Operating
Segments" to Notes to the Consolidated Financial Statements.
- -------------------------------------------------------
Personal Wealth Management Services
The Corporation provides a complete array of financial services for affluent
individuals and families. These services, defined as Personal Wealth Management
Services, include investment management (domestic and international equity,
fixed income and alternative investments, such as venture capital and real
estate), investment consulting, trust, financial and estate planning and private
banking. Personal Wealth Management Services are provided through New York and
National. The Corporation has been well established in the New York Wealth
Management business for many years. More recently, the Corporation has expanded
its presence beyond New York through national expansion resulting in the
establishment of its National Wealth Management business. The Corporation
anticipates that its national expansion will continue over the next several
years.
The cornerstone of the Corporation's services to the personal market in
both its New York and National businesses is investment management. At December
31, 1998, personal assets under management were approximately $46.7 billion. The
Corporation views the personal investment market in three sectors and has
tailored its products and service delivery to each.
Personal Wealth Management's primary market sector consists of individuals
with $2 million to $50 million in investment assets. The Corporation provides to
these clients both individually managed balanced accounts and specialized
investment management services. These clients are offered and generally utilize
the Corporation's other wealth management services.
The second sector of the personal market includes clients in the wealth
accumulation phase, with $250,000 to as much as $2 million in financial assets.
In this sector, the Corporation offers Wealth Advisory Accounts; an investment
advisory service that utilizes the U.S. Trust-advised Excelsior family of mutual
funds.
The third personal market sector is comprised of clients who have over $50
million in investment assets and whose financial needs are particularly complex.
In addition to investment management services, the Corporation offers to these
clients specialized
38
<PAGE> 3
fiduciary, financial planning, enhanced master custody and philanthropic
consulting services. The Corporation provides counseling to high-net-worth
families regarding the development of tax-intelligent investment policies and
the selection and monitoring of investment managers. In addition, the
Corporation provides the private equity community with expertise on in-kind
stock distributions, liquidation of securities positions as agent, and hedging
transactions for high-net-worth individuals who frequently face complex issues
involving the disposition of low-cost-basis stock.
The Corporation offers private banking services to meet the credit and
liquidity requirements for all of its Personal Wealth Management clients. These
services include mortgage and personal lending vehicles and an array of deposit
taking products.
A major strategy for the growth of the Corporation's Personal Wealth
Management business has been national expansion. Personal Wealth Management
clients usually prefer services to be delivered locally. The Corporation has
established offices throughout the United States: California, Connecticut,
Florida, New Jersey, Oregon, Texas and Washington D.C. The Corporation also has
broadened its presence in those areas where it is already established, while
selectively pursuing opportunities to enter new areas of wealth concentration.
The Corporation, in January 1999, acquired Radnor Capital Management, Inc., an
investment management company located to service the Philadelphia, Pennsylvania
market.
The Corporation has placed heavy emphasis on the sales effort supporting
the Personal Wealth Management business, including in recent years a three-fold
increase in the size of its sales force and an innovative sales incentive
program for all employees.
- -------------------------------------------------------
Institutional Services
Institutional Services includes investment management, corporate trust,
brokerage and special fiduciary services for corporations, endowments,
foundations, pension plans and other institutional clients.
The Corporation's institutional investment management business provides a
wide range of investment options for its clients, including balanced and
specialized domestic and international equity investment styles, structured
investments, alternative investments, fixed-income vehicles and short-term cash
management. Institutional clients can also utilize the Corporation's Excelsior
mutual fund family, which offers all major asset classes and both active and
passive management styles. At December 31, 1998, the Corporation managed
approximately $28.3 billion for its institutional clients.
The Corporation is among the top 10 trustees in the country that provide
trust, agency and related services to public and private corporations,
municipalities and other financial enterprises. The Corporation's strategy is to
develop long-term relationships that will generate recurring business. The
aggregate principal amount of assets administered by the corporate trust
business total over $300 billion.
For the eleventh consecutive year the Corporation was the leading trustee
in New York State for new municipal debt issues, and was also ranked among the
top three nationally for the eighth year in a row for new municipal debt issues.
Providing support for complex new types of securities, such as derivatives and
securitized transactions, continues to be the fastest growing aspect of the
corporate trust business.
Institutional Services also includes investment, consulting and fiduciary
services to employee stock ownership plans (ESOPs) that invest in significant
blocks of employer stock. The Corporation specializes in providing these
services to large, complex plans and believes it is the preeminent provider of
such services to this market. Assets under management for this area of its
Institutional Services segment were $13.7 billion at December 31, 1998.
- -------------------------------------------------------
Segment Financial Results
Note 2 to the Notes to the Consolidated Financial Statements presents a detailed
analysis of the operating results of the Corporation's business segments which
should be read in conjunction with the following delineation of each segment's
contribution to the Corporation's overall financial results.
Personal Wealth Management segment compounded fee revenue growth rate has
exceeded 20% over the past three years. Fee revenue for the New York component
of the Personal Wealth Management segment has grown at a compounded growth rate
in excess of 16% over the same three-year period whereas the National
component's fee revenue growth rate has exceeded 31%. Fee revenue growth is
attributable to the segment's commitment to new business, the overall strength
in the financial markets and acquisitions.
Allocated net interest revenue attributable to the Personal Wealth
Management segment has grown at a compounded growth rate in excess of 15%. New
York and National's compounded growth rates were 13% and 26%, respectively. The
increase in allocated net
39
<PAGE> 4
interest is principally attributable to the growth in private banking activities
in this segment.
Personal Wealth Management's profit margin has increased modestly to 22.7%
in 1998 from 21.6% in 1996. The improvement was realized during a period of
significant national expansion.
New York's profit margin was 28.1% in 1998, improving from approximately
26% in both 1997 and 1996. New York, the cornerstone of the Corporation's
Personal Wealth Management segment, continues to increase its penetration in one
of the largest concentrations of wealth in the United States.
National's profit margin was 7.6%, 12.1% and 7.0% for the three year period
ended December 31, 1998. The absolute levels and volatility in National's profit
margins are reflective of the Corporation's continuing investment in its
national expansion strategy. During the past three years, National has acquired
five investment management firms and has opened ten de novo offices. National
provides each new location with the Corporation's full array of Personal
Investment Management service capabilities. The personnel and infrastructure
costs incurred to provide these services are charged directly to National. In
addition, costs incurred to acquire investment management firms managed by
National, including the amortization of intangibles, are borne by National. As a
result, it is anticipated that the profit contribution from National will
continue to fluctuate, reflecting the Corporation's ability to invest in new
markets as it expands its national presence.
Institutional's compounded fee revenue growth rate has exceeded 11% over
the past three years. Institutional's allocated net interest revenue has
remained flat over the three year period. Institutional receives interest
revenue credit principally from the customer deposits generated from its
corporate trust activities. Corporate trust's deposit base has increased during
this three-year period. However, the overall decline in the interest rate
environment has reduced the interest-credit rates the Corporation allocates to
deposit generating businesses. Institutional's profit margin has increased from
21.1% in 1996 to 23.6% in 1998. Institutional's profit contribution is
attributable to the continued strength of the segment's corporate trust and
special fiduciary businesses as well as the segment's further penetration in the
institutional investment management market throughout the United States.
- -------------------------------------------------------
CONSOLIDATED RESULTS OF OPERATIONS
The Corporation recorded record net income of $61.7 million in 1998, compared to
net income of $51.0 million in 1997 and $40.9 million in 1996. On a diluted
basis, earnings per share was $2.96 in 1998, versus $2.39 in 1997 and $1.95 in
1996.
- --------------------------------------------------------------------------------
Fee Revenue
<TABLE>
<CAPTION>
Compound
Years Ended December 31, Growth
-------------------------- Rate
(Dollars in Millions) 1998 1997 1996 96-98
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Personal wealth management services............... $256.4 $209.8 $177.6 20.2%
Institutional services............................ 83.2 71.9 66.6 11.7%
------ ------ ------ ----
Fee revenue....................................... $339.6 $281.7 $244.2 17.9%
====== ====== ====== ====
</TABLE>
Fee revenue increased 20.6% in 1998 from 1997 and increased 15.3% in 1997 from
1996. The increase in fee revenue during these periods was attributable to
strong new business, selective acquisitions and the overall appreciation in the
equity and bond markets.
Approximately 80% of total fee revenue is sensitive to changes in equity
and fixed income market investments. In general, fee revenue is influenced by a
variety of factors, including growth or decline of stock, bond and real estate
market levels, new business, acquisitions, changes in fee rate schedules and
added services. Fee revenue is negatively impacted by the outflow of investment
management assets due to terminating trusts, client withdrawals, income and
estate taxes and lost business. Fee revenue related to market conditions is
determined on a sliding scale so that as the value of a client's portfolio grows
in size; the Corporation earns a smaller percentage on the increasing account
value. Therefore, market value or other incremental changes in a portfolio's
size may not have a proportionate impact on the level of fee revenue. In
general, fee revenue is calculated quarterly based upon the value of the prior
quarters' assets under management. Another important factor in the determination
of fee revenues is the type of assets under management. Depending on how assets
under management are invested, fluctuations in any one market will not
necessarily have a proportionate impact on the overall level of fee revenue. The
following is a comparative analysis of the composition of assets under
management.
40
<PAGE> 5
<TABLE>
<CAPTION>
December 31,
------------------
1998 1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Equity securities........................................... 56% 53% 46%
Fixed income securities..................................... 29 32 39
Short-term money management, real estate and other.......... 15 15 15
--- --- ---
100% 100% 100%
--- --- ---
</TABLE>
- --------------------------------------------------------------------------------
Assets Under Management
The following table delineates assets under management and administration for
the last three years. This analysis is presented on a consolidated and segment
basis. Unless otherwise noted, asset values are measured at their estimated fair
value.
<TABLE>
<CAPTION>
Compound
December 31, Growth
------------------------ Rate
(Dollars in Billions) 1998 1997 1996 96-98
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Assets under management:
Investment management................................. $ 61.3 $ 47.3 $ 38.0 27.1%
Special fiduciary..................................... 13.7 13.9 15.3 (5.4)
------ ------ ------ ------
Total assets under management...................... 75.0 61.2 53.3 18.7
------ ------ ------ ------
Assets under administration:
Personal custody and other............................ 26.0 20.1 15.7 28.9
Corporate and municipal trusteeships and agency
relationships at par value......................... 300.5 248.6 216.6 17.8
------ ------ ------ ------
Total assets under administration.................. 326.5 268.7 232.3 18.6
------ ------ ------ ------
Total assets under management and administration........ $401.5 $329.9 $285.6 18.6%
====== ====== ====== ======
Segment assets under management and administration:
Personal wealth management
Assets under management............................... $ 46.7 $ 37.6 $ 29.1 26.7%
Assets under administration........................... 15.3 11.7 9.9 24.4
------ ------ ------ ------
Total.............................................. 62.0 49.3 39.0 26.1
------ ------ ------ ------
Institutional
Assets under management............................... 28.3 23.6 24.2 8.2
Assets under administration........................... 311.2 257.0 222.4 18.3
------ ------ ------ ------
Total.............................................. 339.5 280.6 246.6 17.3
------ ------ ------ ------
Total assets under management and administration........ $401.5 $329.9 $285.6 18.6%
====== ====== ====== ======
</TABLE>
Investment management assets increased by 29.8% in 1998 and by 24.4% in 1997 and
13.6% in 1996. During 1998, the Corporation acquired Wood Island Associates,
Inc., Maier & Siebel, Inc., and McMurrey Investment Advisors, Inc., which in
aggregate managed approximately $1.6 billion in personal and institutional
assets at acquisition date (see Note 3 to Notes to the Consolidated Financial
Statements).
The Corporation's Excelsior Funds totaled $7.5 billion assets under
management at December 31, 1998, compared with $5.9 billion as of December 31,
1997 and $4.8 billion as of December 31, 1997.
41
<PAGE> 6
- --------------------------------------------------------------------------------
Operating Expenses
The following table provides details of operating expenses for the last three
years.
<TABLE>
<CAPTION>
Compound
Years Ended December 31, Growth
------------------------------ Rate
(Dollars in Thousands) 1998 1997 1996 96-98
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Salaries and other employee benefits............. $150,262 $125,901 $112,474 15.6%
Performance compensation......................... 41,028 32,472 24,621 29.1%
Sales commissions and incentives................. 19,448 14,050 10,183 38.2%
Occupancy........................................ 36,574 39,294 34,214 3.4%
Other............................................ 93,243 77,440 71,958 13.8%
-------- -------- -------- ------
Total............................................ $340,555 $289,157 $253,450 15.9%
======== ======== ======== ======
</TABLE>
Operating expenses increased by $51.4 million in 1998 compared to 1997 and
increased by $35.7 million in 1997 compared to 1996. The Corporation's pre-tax
margin was 22.9%, 22.4% and 21.5% for the years ended December 31, 1998, 1997
and 1996, respectively.
Salaries and other employee benefits increased $24.4 million in 1998 an
increase of 19.3% from the total of $125.9 million in 1997. Salaries and other
employee benefits increased $13.4 million in 1997 an increase of 11.9% from the
total of $112.5 million in 1996. The number of full-time equivalent employees
increased 14.5% to 1,761 at December 31, 1998 and increased 5.8% to 1,538 at
December 31, 1997, from 1,453 at December 31, 1996. The increase in employees is
attributable to acquisitions and internal growth required to meet an expanding
customer base.
Performance compensation is determined based upon the Corporation's
financial performance as measured by the Corporation's diluted earnings per
share, adjusted to offset the impact of extraordinary or nonrecurring events, or
other conditions or circumstances that warrant consideration. Performance
compensation increased $8.6 million in 1998, an increase of 26.3% from the total
of $32.5 million in 1997. Performance compensation increased $7.9 million in
1997, an increase of 31.9% from $24.6 million in 1996. The increases in 1998 and
1997 are due to the Corporation's strong financial performance and the increase
in staffing levels.
Sales commissions and incentives increased $5.4 million in 1998, an
increase of 38.4% from the total of $14.1 million in 1997. Sales commissions and
incentives increased $3.9 million in 1997, an increase of 38.0% from the total
of $10.2 million in 1996. These increases reflect the Corporation's strong
emphasis on sales. The Corporation makes a substantial commitment to sales,
marketing and advertising. As of December 31, 1998, 141 employees were devoted
to these functions compared to 115 employees as of December 31, 1997 and 98
employees as of December 31, 1996. Direct expenses associated with these
functions, including salary, employee benefits, performance compensation and
sales commissions and incentives, were $40.7 million, $29.1 million and $25.2
million for the years ended December 31, 1998, 1997 and 1996, respectively. In
addition to the aforementioned expenses, occupancy expense directly allocable to
these functions amounted to approximately $2.3 million, $2.2 million and $1.9
million for the years ended December 31, 1998, 1997 and 1996, respectively.
Occupancy charges decreased $2.7 million or 6.9% in 1998 compared to 1997
but increased $5.1 million or 14.8% in 1997 compared to 1996. During 1997 and
1996, the Corporation incurred certain leasehold escalation charges related to
previously abated tax assessments. In 1998, there were no such charges.
Other operating expenses increased 20.4% in 1998 and increased 7.6% in
1997. The increase in other operating expense reflects the impact of its
national expansion strategy as well as normal growth. Other operating expenses
in 1998 include the external costs of Year 2000 remediation activities.
Other operating expenses includes an outsourcing agreement with The Chase
Manhattan Bank ("Chase"). Pursuant to this agreement, Chase furnishes necessary
securities processing, custodial, data processing and other operations support
services to the Corporation. The initial term of this agreement expires on
August 31, 2000. The Corporation has the right, at its option, to extend the
term for an additional two years and plans to do so. The agreement also provides
for an option to extend the term for an additional three years beyond August 31,
2002 upon the mutual agreement of the Corporation and Chase. During the initial
five year term of the agreement, the Corporation pays Chase an annual base fee
of $10 million plus additional
42
<PAGE> 7
volume charges. Total charges were $10.6 million in 1998, $10.2 million in 1997
and $10.0 million in 1996. Upon exercise of the two year option, the base fee
will increase by 10% of total charges (excluding certain items) incurred in the
final year of the initial term of the agreement. Management is considering
various possible alternatives for obtaining the services currently provided
under the agreement after its expiration on August 31, 2002. These alternatives
include seeking a further extension of the Chase agreement, obtaining the
services from other third-party providers or providing all or a portion of such
services itself. Although the costs of obtaining or providing such services are
expected to increase, the Corporation believes, at this time, that such an
increase will not have a material adverse effect on the Corporation's results of
operations.
Other operating expenses also includes amortization of intangibles
resulting from acquisitions. Amortization of intangibles was $5.8 million in
1998, $3.5 million in 1997 and $2.6 million in 1996. Amortization of intangibles
does not require the use of cash and therefore, the Corporation believes it
should be distinguished from other operating expenses. The impact on net income
after consideration of applicable income tax benefits of these non-cash charges
was approximately $4.6 million, $2.6 million and $1.9 million in 1998, 1997 and
1996, respectively. Excluding the after-tax impact of amortization of intangible
assets, diluted earnings per share would have been $3.17, $2.51 and $2.04 for
the years ended December 31, 1998, 1997 and 1996, respectively.
The following discussion relates to the Corporation's Year 2000 state of
readiness and the resulting external remediation costs. All of the external
remediation costs are recorded as other operating expenses.
Year 2000 issues -- State of Readiness
In 1996, the Corporation established a Year 2000 Committee with the
responsibility for developing an effective plan for identifying, renovating,
testing and implementing simulated solutions for Year 2000 processing. The Plan
consists of the following five phases: (1) awareness of the problem and
commitment by senior management to dedicate the necessary resources to address
this problem; (2) a comprehensive inventory assessment of all hardware and
software, vendor interfaces and service providers to understand the magnitude of
the issue; (3) a systems code remediation schedule for all affected software
systems; (4) a comprehensive validation methodology to test all affected
applications; and (5) production implementation of the corrected software
systems. The first two phases of the Plan were completed in September, 1998.
The remaining phases of the Plan, software code remediation and testing of
critical systems are substantially completed. The Corporation is working with
Chase and Marshall & Illsley Data Services, providers of the Corporation's most
significant data processing systems (collectively, the "Service Providers"), to
assure compliance with required systems changes. The Service Providers are
responsible for and bear the cost of effecting all necessary changes to such
systems.
With regard to the three major proprietary systems of the Corporation, the
remediated Asset Management System and Banking System are in production and the
corrected Corporate Trust System is scheduled to be in production at the end of
the first quarter 1999. The Corporation will run all of its corrected systems in
a production environment during the balance of 1999. Where appropriate, point to
point street-wide testing for connectivity and data exchange with regulatory and
depository agencies will also take place in 1999.
In addition, the Corporation has a number of business relationships that
include vendors and suppliers. The Corporation has contacted these entities to
determine the status of their Year 2000 efforts and to track the renovation and
readiness of their systems for the Year 2000. Where appropriate, testing will be
conducted between the Corporation and these vendors. In the event that the
product or service provided by the vendor is not Year 2000 ready, alternative
providers will be employed. A final follow-up regarding these entities' Year
2000 readiness will be made by the end of the second quarter of 1999.
As a result of its Plan, the Corporation expects to have dealt with Year
2000 issues well in advance of the event.
Year 2000 issues -- The Cost
At September 30, 1998, the Corporation estimated the total cost of remediating
its Year 2000 issues at between $5 million and $6 million. Based on its most
recent evaluation, the Corporation believes that the cost will range from
approximately $4 million to $5 million. These costs include the costs of
remediation, testing, third party assessment, and contingency planning. To date
the Corporation has spent approximately $2.2 million. This amount does not
include the cost associated with substantial managerial time that senior
officers and employees have dedicated
43
<PAGE> 8
on Year 2000 issues. Since the Service Providers are responsible for and bear
the cost of effecting all necessary changes to the Corporation's most
significant data processing systems, most of the Corporation's costs will be on
testing. The Corporation expects costs on additional testing in 1999 to not
exceed $1.5 million with the remaining costs to be incurred on
infrastructure/equipment upgrades. While the Corporation has deferred certain
other projects as a result of efforts regarding Year 2000, we believe that these
deferrals will have no material impact on our operating results.
Contingency Plan
The Corporation has developed a contingency plan to deal with Year 2000 issues,
including (1) identifying likely contingencies; (2) developing procedures to be
followed in the event of each contingency; and (3) identifying personnel
responsible for each of the Corporation's businesses that may be involved in any
actual contingency. In the event of an operational disruption, the Corporation
has in place contingency plans for its mission critical functions. Key area and
command recovery personnel within each business sector will have been identified
and trained to initiate the necessary action steps in maintaining overall
control and continued business continuity. While the Corporation's plan is
substantially complete, the plan will remain subject to change and refinement to
address any additional information that becomes available. The plan will be
reviewed by the Corporation's internal audit department during the third quarter
of 1999. In addition the Corporation has examined and will rely on the
contingency plans of the Service Providers.
Year 2000 -- Risk Issues
Although it is not possible to predict accurately the consequences of a Year
2000 failure, the Corporation is confident that its efforts at remediation will
greatly reduce any disruption. While not anticipated, the most reasonable likely
worst case scenario would be a failure by either one of the Corporation's
mission critical systems or the Service Providers systems. In this case, the
Corporation would lose the ability to service its clients for a period of time.
If any of these failures were not corrected within a reasonable period of time,
it could have a material negative effect on the operations and financial
condition of the Corporation. In addition, if the Corporation is not able to
identify or correct the Year 2000 problems in its mission critical applications,
or if the Corporation cannot hire qualified personnel necessary to complete its
Year 2000 plans in accordance with projected costs and timetables, the
operations and financial condition of the Corporation could be adversely
affected.
The disclosure contained in this 10-K as well as the information previously
filed by the Corporation regarding its Year 2000 readiness are designated as
Year 2000 readiness disclosure related to the Year 2000 Information and
Readiness Disclosure Act.
- -------------------------------------------------------
Net Interest Revenue and Asset/Liability Management
<TABLE>
<CAPTION>
Years Ended December 31,
(Dollars in --------------------------------
Thousands) 1998 1997 1996
- -------------------------------------------------------
<S> <C> <C> <C>
Interest revenue $ 224,743 $ 212,521 $174,731
Interest expense (122,117) (120,862) (95,861)
Provision for credit
losses (600) (750) (1,000)
Securities gains, net 4 216 642
--------- --------- --------
Net interest revenue $ 102,030 $ 91,125 $ 78,512
========= ========= ========
Percentage increase
(decrease) from
prior period 12.0% 16.1% (22.3)%
========= ========= ========
</TABLE>
<TABLE>
<CAPTION>
Years Ended December 31,
- --------------------------------------------------
1998 1997 1996
- --------------------------------------------------
<S> <C> <C> <C>
Average rates (taxable
equivalent basis):
Interest earning assets 6.99% 7.09% 7.03%
Cost of funding interest
earning assets 3.75 3.97 3.79
---- ---- ----
Net yield on interest
earning assets 3.24% 3.12% 3.24%
==== ==== ====
- --------------------------------------------------
</TABLE>
Net interest revenue is affected by changes in the absolute levels of interest
rates and shifts in the term structure of interest rates, funding strategies,
and the impact of changes in the credit quality of the loan portfolio. The net
yield on interest earning assets at December 31, 1998, has increased moderately
from the corresponding 1997 period. Average interest earning assets increased by
7.0% to approximately $3.3 billion as of December 31, 1998 compared to a 20.6%
increase between 1997 and 1996.
44
<PAGE> 9
<TABLE>
<CAPTION>
Years Ended
December 31,
Average Balances ---------------------
(Percentage) 1998 1997 1996
- --------------------------------------------------
<S> <C> <C> <C>
Short-term financial
instruments 6.6% 3.8% 3.9%
Investment securities 28.4 34.4 31.1
----- ----- -----
Total short-term financial
instruments and
securities 35.0 38.2 35.0
Loans, net of allowance for
credit losses 53.2 49.9 51.8
Non-interest earning
assets................... 11.8 11.9 13.2
----- ----- -----
Total assets 100.0% 100.0% 100.0%
===== ===== =====
Average total assets (in
billions) $ 3.7 $ 3.4 $ 2.9
===== ===== =====
- --------------------------------------------------
</TABLE>
The loan portfolio is the largest component of average total assets. Average
loans for 1998 were $2.0 billion, a $238.8 million or 13.8% increase over
average loans for the year ended December 31, 1997. Average loans for 1997 were
$1.7 billion, a $218.6 million or 14.5% increase over average loans for the year
ended December 31, 1996. The Corporation's loan portfolio is predominantly
comprised of loans to private banking customers. Approximately 74% and 70% of
total loans are collateralized by residential real estate mortgages at December
31, 1998 and December 31, 1997, respectively. Loans collateralized by
residential real estate mortgages increased 20.1% to $1.6 billion at December
31, 1998 from $1.4 billion at December 3l, 1997. At December 31, 1997, loans
collateralized by residential real estate mortgages increased 24.2% from the
December 31, 1996 figure.
- -------------------------------------------------------
Market Risk and Sensitivity Analysis
The objective of asset and liability management is to maximize net interest
revenue while maintaining acceptable levels of interest rate sensitivity, high
asset quality and adequate liquidity.
The Corporation does not trade financial instruments nor does the
Corporation invest in financial instruments denominated in foreign currencies.
The Corporation's principal risk is interest rate related. Interest rate risk
results from differences in the maturity and/or repricing of the Corporation's
assets (which consist primarily of mortgage loans, mortgage backed securities
and other fixed rate investments) and its liabilities, (predominately floating
rate deposits). The Corporation uses interest rate swaps ("Swaps") as hedging
vehicles to mitigate interest rate exposure.
The Corporation uses net interest income ("NII") simulation modeling
techniques to evaluate and manage the effect of changing interest rates. The
Corporation's simulation model includes all on-balance sheet and off-balance
sheet financial instruments and measures NII under various interest rate
scenarios. Key variables in the NII simulation include changes to the level and
term structure of interest rates, the repricing of financial instruments,
prepayment and reinvestment assumptions, loan and deposit pricing and volume
assumptions. These simulations involve assumptions that are inherently uncertain
and as a result, the simulation models cannot precisely estimate NII or
precisely predict the impact of changes in interest rates on NII. Actual results
may differ from simulated results due to the timing, magnitude and frequency of
interest rate changes as well as changes in market conditions and management
strategies, including changes in asset and liability mix.
The simulation model approximates the impact on NII of changes in interest
rates across the yield curve. The simulation model at December 31, 1998
indicates that a 50 to 100 basis point increase in interest rates would decrease
simulated 1999 NII by approximately $3 to $7 million whereas an increase in
interest rates of 150 to 200 basis points would decrease simulated 1999 NII by
approximately $11 to $15 million. Conversely, a 50 to 100 basis point decrease
in interest rates would increase simulated 1999 NII by approximately $3 to $6
million and a 150 to 200 basis point decrease in interest rates would increase
simulated 1999 NII by approximately $8 to $12 million.
At December 31, 1997, a 50 to 100 basis point increase in interest rates
would decrease simulated 1998 NII by approximately $2 to $5 million. An increase
in interest rates of 150 to 200 basis points would decrease simulated 1998 NII
by approximately $7 to $11 million. Conversely, a 50 to 100 basis point decrease
in interest rates would increase simulated 1998 NII by approximately $2 to $4
million and a 150 to 200 basis point decrease in interest rates would increase
simulated 1998 NII by approximately $5 to $7 million.
Each of these simulations assumes that the asset and liability structure of
the balance sheet would not be changed as a result of the simulated changes in
interest rates. As the Corporation actively manages its balance sheet and
interest rate exposure, in all likelihood the Corporation would take steps to
ameliorate any additional interest rate exposure that would result from the
aforementioned simulated changes in the interest rate environment.
45
<PAGE> 10
The following table provides details of the notional amounts of Swaps by
maturity and the related average interest rates paid and received. The
Corporation is a fixed rate payor on all of its Swaps.
<TABLE>
<CAPTION>
Maturing
--------------------------------------------
Within 1 1 to 5 Over 5
(Dollars in Thousands) Year Years Years Total
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
December 31, 1998:
Fixed pay swaps................................. $ 70,000 $490,000 -- $560,000
Average rate paid............................... 6.72% 6.56% -- 6.58%
Average rate received*.......................... 5.26% 5.25% -- 5.25%
December 31, 1997:
Fixed pay swaps................................. $106,500 $475,000 $ 85,000 $666,500
Average rate paid............................... 6.45% 6.65% 6.17% 6.56%
Average rate received*.......................... 5.84% 5.84% 5.80% 5.84%
December 31, 1996:
Fixed pay swaps................................. $ 33,000 $466,500 $150,000 $649,500
Average rate paid............................... 6.93% 6.69% 6.31% 6.61%
Average rate received*.......................... 5.55% 5.54% 5.54% 5.54%
</TABLE>
- --------------------------------------------------------------------------------
*Represents the average variable rate that would be received by the Corporation
based upon the rate in effect at the latest variable rate reset date of each
Swap.
The impact of the Corporation's hedging activities upon net interest revenue for
the years ended December 31, 1998, 1997 and 1996, are detailed in the following
table.
- -------------------------------------------------------
<TABLE>
<CAPTION>
For the Years Ended
December 31,
(Dollars in ------------------------------
Thousands) 1998 1997 1996
- -----------------------------------------------------
<S> <C> <C> <C>
Net interest revenue:
As reported $102,030 $91,125 $78,512
Excluding hedging
activities $107,646 $96,839 $84,373
Net yield on interest
earning assets:
As reported 3.24% 3.12% 3.24%
Excluding hedging
activities 3.42% 3.32% 3.48%
</TABLE>
The difference between the results "As Reported" and "Excluding Hedging
Activities" in each year reflects the cost of using Swaps to hedge interest rate
risk.
- -------------------------------------------------------
Liquidity and Capital Management
The objective of liquidity management is to ensure the availability of financial
resources to meet the Corporation's cash flow requirements and to capitalize on
opportunities for business expansion. The Corporation monitors the liquidity
position of the Parent and each of its subsidiaries on an ongoing basis to
ensure that funds are available to meet loan and deposit cash flow requirements.
Liquidity management is also structured to ensure that the capital needs of the
Parent and each of its subsidiaries are met on a day to day basis.
The Parent's liquidity requirements consist mainly of dividend payments to
common stockholders, interest and principal payments to debt holders,
repurchases of its common stock and capital required for acquisitions or for
additions to its subsidiaries.
The Parent was authorized to repurchase two million shares of common stock.
The repurchased shares are available to meet the Parent's obligations under its
stock-based benefit plans and for general capital management purposes. During
1998, 866,900 shares were repurchased at a weighted average purchase price of
$67.10 per share. At December 31, 1998, the Parent could repurchase an
additional 189,010 common shares. At the January 26, 1999 Board of Directors
(the "Board") meeting, the Board authorized the repurchase of an additional two
million shares of common stock. In addition, on January 26, 1999, the
Corporation announced a 22% increase in its regular quarterly common stock
dividend, indicating an annual dividend of $0.88 per share. Actual
46
<PAGE> 11
dividends declared are subject to approval by the Board and regulatory capital.
The Parent's sources of liquidity are derived primarily from dividends from
its subsidiaries, issuances of common stock and issuances of long and short-term
debt instruments. During 1998, the subsidiaries remitted $51.0 million in cash
dividends to the Parent. Further, as of January 1, 1999, the subsidiaries have
the ability to pay dividends of approximately $46.9 million without prior
approval of the regulatory authorities.
In January 1997, the Corporation issued $50.0 million of trust-preferred
securities to third parties which qualify as Tier 1 Capital. The proceeds from
the issuance have been used for general corporate purposes, including the
repurchase of the Corporation's common stock.
The Parent has a $40.0 million unsecured revolving credit facility maturing
in 1999. As of December 31, 1998, the Parent had $20 million outstanding under
this facility. The Corporation is currently negotiating a replacement credit
facility. Additionally, the Parent may borrow, subject to certain regulatory
restrictions, on a fully collateralized basis from its subsidiaries.
The Parent is authorized to issue up to 5 million, $1.00 par value,
preferred shares. As of December 31, 1998, no preferred shares have been issued.
In addition to traditional interest and non-interest bearing deposit
raising capabilities, the banking subsidiaries have established their own
external funding sources. Certain subsidiaries have established credit
facilities with the Federal Home Loan Bank System ("FHLB") totaling $371.6
million. As of December 31, 1998, borrowing under these credit facilities was
$14.0 million.
The subsidiaries also generate liquidity from the types of financial
instruments that they carry as investment securities. Approximately $841 million
or 79% of the investment securities portfolio is comprised of U.S. Treasury or
federal agency obligations. These securities are readily marketable and may be
sold or financed through repurchase agreements, as appropriate. At December 31,
1998, securities sold under agreements to repurchase aggregated $90.3 million.
The subsidiaries may also pledge these securities to secure public deposits, to
qualify for fiduciary powers and to use as collateral for FHLB and other
borrowings. Pledged assets at December 31, 1998 totaled $230.3 million.
- -------------------------------------------------------
REGULATION AND SUPERVISION
The Parent is a bank holding company within the meaning of the Bank Holding
Company Act of 1956 (the "Act"). As such, the Corporation is required to file
certain reports with and is subject to examination by the Board of Governors of
the Federal Reserve System (the "Board of Governors"). The Act generally
precludes the Parent and its subsidiaries from engaging in nonbanking
activities, as defined, and limits the amount of securities the Corporation may
acquire of a company engaging in nonbanking activities. Federal law and Board of
Governors interpretations limit the extent to which the Corporation can engage
in certain aspects of the securities business.
The Superintendent of Banks of the State of New York has the authority to
examine the affairs of the Corporation for the purpose of determining the
financial condition of United States Trust Company of New York (the "Trust
Company"). The Trust Company and its operations are subject to federal and New
York State laws applicable to commercial banks and trust companies and to
regulation and examination by both federal and New York state banking
authorities.
New York banks are barred from acting as a fiduciary in a number of states,
and in a number of other states where they may and do act as a fiduciary, their
activities are limited by state law and regulations.
The Parent as a result of its ownership of U.S. Trust Company of Florida
Savings Bank ("Florida") is a savings bank holding company. Accordingly, the
Corporation and Florida are subject to regulation and examination by the Office
of Thrift Supervision. U.S. Trust Company, N.A. (formerly, U.S. Trust Company of
California, N.A.) and U.S. Trust Company of Texas, N.A. are subject to
regulation and examination by the Office of the Comptroller of the Currency.
U.S. Trust Company of New Jersey is subject to regulation and examination by the
Banking Department of the State of New Jersey and the Federal Deposit Insurance
Corporation ("FDIC"). U.S. Trust Company of Connecticut is subject to regulation
and examination by the Department of Banking of the State of Connecticut and the
FDIC.
The Federal Reserve Act and the Federal Deposit Insurance Act impose
certain restrictions on loans by the bank subsidiaries to the Corporation and
each other. In addition, the Corporation and its subsidiaries are subject to
restrictions imposed by the Glass-Steagall Act with respect to engaging in
certain aspects of the securities business.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
("FIRREA") provides for cross-guarantees of the liabilities of insured
depository institutions
47
<PAGE> 12
pursuant to which any bank subsidiary of the Corporation may be required to
reimburse the FDIC for any loss or anticipated loss to the FDIC that arises from
a default of any of the Parent's other bank subsidiaries or assistance provided
to such an institution in danger of default.
The Parent and its FDIC insured subsidiaries are subject to risk-based and
leverage capital guidelines issued by the federal bank regulators. These
regulatory agencies are required by law to take specific prompt actions with
respect to institutions that do not meet minimum capital standards and have
defined five capital tiers, the highest of which is "well capitalized". The
Corporation and each of its bank subsidiaries were "well capitalized" as of
December 31, 1998. See Note 20 "Parent Company Only and Regulatory Matters" in
the Notes to the Consolidated Financial Statements.
- -------------------------------------------------------
Government Monetary Policies
Monetary authorities have a significant impact on the operating results of the
Corporation and other financial services institutions. The decisions of the
Board of Governors affect the supply of money and Federal Reserve System member
bank reserves through open market operations in U.S. Government securities or by
changes in the discount rate or reserve requirements. The Board of Governors
actions have an important influence on the growth of bank loans and investments
and the level of interest charged for loans and paid on deposits. Because of
changing conditions in the money markets, as a result of actions by the Board of
Governors and other regulatory authorities, interest rates, credit availability,
deposit levels and bond and stock prices may change materially due to
circumstances beyond the control of the Corporation.
- -------------------------------------------------------
LEGAL PROCEEDINGS
Various actions and claims are pending or are threatened against the Corporation
in which liability has been denied and which will be vigorously contested.
Management, after consultation with counsel, is of the opinion that the ultimate
resolution of such matters is unlikely to have any future material adverse
effect on the Corporation's financial position, results of operations or cash
flows.
- -------------------------------------------------------
PROPERTIES
The Corporation's principal executive office is located at 114 West 47th Street,
New York, New York 10036 and its telephone number at that office is (212)
852-1000. The Corporation and its subsidiaries lease substantially all of its
premises. The Trust Company rents approximately 528,000 square feet of office
space in New York City principally at its 47th Street location under a lease
expiring in 2014. The Corporation has operations which lease office space in
Costa Mesa, Larkspur, Los Angeles and San Francisco, California; Stamford,
Greenwich and West Hartford, Connecticut; Washington, D.C.; Naples, Palm Beach
and Vero Beach, Florida; Jersey City, Morristown and Princeton, New Jersey;
Garden City, Long Island; Portland, Oregon; Dallas and Houston, Texas. The
Corporation owns buildings in New York, Florida and Connecticut from which it
conducts business.
- -------------------------------------------------------
ADOPTION OF NEW ACCOUNTING STANDARDS
Comprehensive Income
As of January 1, 1998, the Corporation adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income," ("FAS 130"). FAS 130
requires that changes in comprehensive income items be shown in a primary
financial statement. These disclosures are presented in the consolidated
statement of changes in stockholders' equity.
- -------------------------------------------------------
Segment Disclosure
Statement of Financial Accounting Standards No. 131, "Disclosures about Segments
of an Enterprise and Related Information," ("FAS 131") was issued in June 1997,
effective for interim and annual periods beginning with consolidated financial
statements for December 31, 1998. Comparative prior period information is
required. FAS 131 requires disclosure of financial and descriptive information
about the Corporation's reportable operating segments. The Corporation has
presented the financial disclosures and commentary prescribed by FAS 131 in
"Notes to the Consolidated Financial Statements No. 2".
- -------------------------------------------------------
Pension and Other Postretirement Benefits
In February 1998, Statement of Financial Accounting Standards No. 132,
"Employer's Disclosures about Pensions and Other Postretirement Benefits," ("FAS
132") was issued. FAS 132 revises employer's disclosures about pensions and
other postretirement benefits to include additional information on changes in
benefit obligations and plan assets and eliminates certain disclosures to
facilitate the financial analysis of these plans. The Corporation's consolidated
financial statements for the year ended December 31, 1998 reflect the adoption
of FAS 132.
48
<PAGE> 13
- -------------------------------------------------------
Computer Software Costs
In March 1998, Statement of Position No. 98-1, "Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use," ("SOP 98-1") was
issued effective for financial statements issued in 1999. SOP 98-1 requires the
capitalization of eligible costs of specified activities related to computer
software developed or obtained for internal use. The adoption of SOP 98-1 will
not have a material effect on the Corporation's financial condition or results
of operations.
- -------------------------------------------------------
Accounting for Derivatives
In June 1998, Statement of Financial Accounting Standards No. 133, "Accounting
for Derivative Instruments and Hedging Activities," ("FAS 133") was issued. FAS
133 establishes accounting and reporting standards for derivatives. FAS 133
requires recognition of all derivatives as either assets or liabilities in the
statement of financial condition and measurement of those instruments at fair
value. Fair market valuation adjustments for derivatives meeting hedge criteria
will be recorded in either comprehensive income or earnings depending on their
classification. The Corporation's use of derivatives to date has been limited to
utilizing interest rate swaps as hedges to mitigate interest rate exposure
created by financing long-term, fixed rate financial instruments with
shorter-term, floating rate, interest bearing deposits. As such this use of
interest rate swaps would be categorized as cash flow hedges (as defined by FAS
133) and the related fair value of interest rate swaps would be recorded in
comprehensive income to the extent that the cash flow hedge is one hundred
percent effective. FAS 133 is effective for all quarters of years beginning
after June 15, 1999.
49
<PAGE> 14
U.S. TRUST CORPORATION
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEARS ENDED DECEMBER 31,
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) 1998 1997 1996
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------
REVENUE
Fee Revenue...................................................... $339,619 $281,691 $244,211
1998 1997 1996
-------- -------- -------
Interest Revenue................. 224,743 212,521 174,731
Interest Expense................. (122,117) (120,862) (95,861)
Provision for Credit Losses...... (600) (750) (1,000)
Securities Gains, Net............ 4 216 642
-------- -------- -------
Net Interest Revenue............................................. 102,030 91,125 78,512
-------- -------- --------
Total Revenue.................................................... 441,649 372,816 322,723
-------- -------- --------
OPERATING EXPENSES
Salaries......................................................... 117,889 100,997 92,728
Performance Compensation......................................... 41,028 32,472 24,621
Sales Commissions and Incentives................................. 19,448 14,050 10,183
Other Employee Benefits.......................................... 32,373 24,904 19,746
-------- -------- --------
Total Salaries, Performance
Compensation and Other Benefits................................ 210,738 172,423 147,278
Occupancy........................................................ 36,574 39,294 34,214
Other............................................................ 93,243 77,440 71,958
-------- -------- --------
Total Operating Expenses......................................... 340,555 289,157 253,450
-------- -------- --------
Income Before Income Taxes....................................... 101,094 83,659 69,273
Income Taxes..................................................... 39,427 32,627 28,369
-------- -------- --------
Net Income....................................................... $ 61,667 $ 51,032 $ 40,904
======== ======== ========
Basic Earnings Per Share......................................... $ 3.29 $ 2.64 $ 2.09
======== ======== ========
Diluted Earnings Per Share....................................... $ 2.96 $ 2.39 $ 1.95
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
50
<PAGE> 15
U.S. TRUST CORPORATION
CONSOLIDATED STATEMENT OF CONDITION
DECEMBER 31,
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS) 1998 1997
<S> <C> <C>
- --------------------------------------------------------------------------------------------
ASSETS
Cash and Due from Banks..................................... $ 108,346 $ 74,887
Short-Term Investments...................................... 459,263 387,608
Securities Available for Sale............................... 1,058,088 1,131,475
Loans, Net of Allowance for Credit Losses ($19,414 in 1998
and $18,294 in 1997)...................................... 2,171,393 1,920,555
Premises and Equipment, Net................................. 77,020 77,563
Other Assets................................................ 268,752 222,894
---------- ----------
Total Assets................................................ $4,142,862 $3,814,982
========== ==========
LIABILITIES
Deposits:
Non-Interest Bearing...................................... $ 824,585 $ 746,314
Interest Bearing.......................................... 2,590,206 2,327,588
---------- ----------
Total Deposits.............................................. 3,414,791 3,073,902
Short-Term Credit Facilities................................ 140,925 179,588
Accounts Payable and Accrued Liabilities.................... 274,738 258,092
Long-Term Debt.............................................. 67,773 72,254
---------- ----------
Total Liabilities........................................... 3,898,227 3,583,836
---------- ----------
Commitments and Contingencies
STOCKHOLDERS' EQUITY
Preferred Stock, Par Value $1.00; Authorized 5,000,000;
Issued, None.............................................. -- --
Common Stock, Par Value $1.00; Authorized 40,000,000 Shares;
Issued 19,970,842 in 1998 and 19,894,785 in 1997.......... 19,971 19,895
Capital Surplus............................................. 18,902 12,325
Retained Earnings........................................... 293,289 244,980
Treasury Stock, at Cost (1,502,184 Shares in 1998 and
879,706 Shares in 1997)................................... (87,768) (42,627)
Loan to ESOP................................................ (3,773) (7,254)
Accumulated Other Comprehensive Income...................... 4,014 3,827
---------- ----------
Total Stockholders' Equity.................................. 244,635 231,146
---------- ----------
Total Liabilities and Stockholders' Equity.................. $4,142,862 $3,814,982
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
51
<PAGE> 16
U.S. TRUST CORPORATION
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31,
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Accumulated
Other Total
(Dollars in Thousands, Except Per Common Capital Retained Treasury Loan to Comprehensive Stockholders'
Share Amounts) Stock Surplus Earnings Stock ESOP Income Equity
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1998.............. $19,895 $12,325 $244,980 $(42,627) $ (7,254) $3,827 $231,146
Net Income............................ 61,667 61,667
Change in Net Unrealized Gain on
Securities Available for Sale....... 187 187
------- ---------- -----------
Total Comprehensive Income............ 61,667 187 61,854
------- ---------- -----------
Purchases of Treasury Stock (866,900
Shares)............................. (58,173) (58,173)
Principal Payment by ESOP............. 3,481 3,481
Cash Dividends Declared ($0.72 Per
Share).............................. (13,451) (13,451)
Issuance of Shares for Acquisitions
(173,593 Shares).................... 2,917 9,538 12,455
Issuance of Shares Under Employee
Benefit Plans (146,886 Shares)...... 76 2,018 3,494 5,588
Tax Benefits From Stock Based Awards.. 1,642 93 1,735
------- ------- -------- -------- -------- ------ --------
Balance, December 31, 1998............ $19,971 $18,902 $293,289 $(87,768) $ (3,773) $4,014 $244,635
======= ======= ======== ======== ======== ====== ========
Balance, January 1, 1997.............. $19,630 $ 3,575 $205,384 $(4,728) $(10,468) $ 705 $214,098
Net Income............................ 51,032 51,032
Change in Net Unrealized Gain on
Securities Available for Sale....... 3,122 3,122
------- ---------- -----------
Total Comprehensive Income............ 51,032 3,122 54,154
------- ---------- -----------
Purchases of Treasury Stock (820,090
Shares)............................. (40,492) (40,492)
Principal Payment by ESOP............. 3,214 3,214
Cash Dividends Declared ($0.60 Per
Share).............................. (11,579) (11,579)
Issuance of Shares for Acquisitions
(204,218 Shares).................... 204 6,943 7,147
Issuance of Shares Under Employee
Benefit Plans (125,389 Shares)...... 61 549 2,593 3,203
Tax Benefits From Stock Based Awards.. 1,258 143 1,401
------- ------- -------- -------- -------- ------ --------
Balance, December 31, 1997............ $19,895 $12,325 $244,980 $(42,627) $ (7,254) $3,827 $231,146
======= ======= ======== ======== ======== ====== ========
Balance, January 1, 1996.............. $9,739 $ 125 $183,804 $(13,434) $1,609 $181,843
Effect of Two-For-One Stock Split..... 9,739 (125) (9,690) (76)
Net Income............................ 40,904 40,904
Change in Net Unrealized Gain on
Securities Available for Sale....... (904) (904)
------- ---------- -----------
Total Comprehensive Income............ 40,904 (904) 40,000
------- ---------- -----------
Purchases of Treasury Stock (124,000
Shares)............................. $(4,728) (4,728)
Principal Payment by ESOP............. 2,966 2,966
Cash Dividends Declared ($0.50 Per
Share).............................. (9,778) (9,778)
Issuance of Shares for Acquisitions
(71,258 Shares)..................... 72 2,458 2,530
Issuance of Shares Under Employee
Benefit Plans (80,016 Shares)....... 80 1,117 1,197
Tax Benefits From Stock Based Awards.. 144 144
------- ------- -------- -------- -------- ------ --------
Balance, December 31, 1996............ $19,630 $ 3,575 $205,384 $(4,728) $(10,468) $ 705 $214,098
======= ======= ======== ======== ======== ====== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
52
<PAGE> 17
U.S. TRUST CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31,
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS) 1998 1997 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net Income................................. $ 61,667 $ 51,032 $ 40,904
Adjustments to Reconcile Net Income to Net
Cash Provided by Operating Activities:
Provision for Credit Losses................ 600 750 1,000
Depreciation and Amortization of Premises
and Equipment and Other Assets........... 20,053 14,023 11,776
Net Amortization of Premium on
Securities............................... 3,384 2,778 9
Deferred Income Taxes...................... (3,279) (2,938) 975
Net Change in Accrued Interest and Accounts
Receivable............................... (3,865) (3,185) 7,513
Net Change in Accounts Payable and Other
Liabilities.............................. 16,866 25,117 (371)
Other, Net................................. 5,831 2,399 2,397
--------- ----------- -----------
Net Cash Provided by Operating
Activities............................... 101,257 89,976 64,203
--------- ----------- -----------
Cash Flows From Investing Activities:
Net Change in Short-Term Investments....... (71,655) (101,658) (281,082)
Purchases of Securities Available for
Sale..................................... (368,657) (625,721) (1,505,453)
Proceeds from Sales of Securities Available
for Sale................................. 1,315 20,804 268,280
Proceeds from Maturities, Calls and
Mandatory Redemptions of Securities
Available for Sale....................... 437,599 642,546 830,287
Net Change in Loans........................ (251,983) (250,762) (228,493)
Purchases of Premises and Equipment........ (13,416) (10,942) (14,110)
Cash used in Acquisitions.................. (22,184) -- --
Other, Net................................. (7,183) (12,240) (10,430)
--------- ----------- -----------
Net Cash Used in Investing Activities...... (296,164) (337,973) (941,001)
--------- ----------- -----------
Cash Flows From Financing Activities:
Net Change in Non-Interest Bearing
Deposits................................. 78,271 58,372 198,115
Net Change in Interest Bearing Deposits.... 262,618 251,741 572,416
Net Change in Short-Term Credit
Facilities............................... (38,663) (60,695) 105,468
Repayment of Long-Term Debt................ (4,481) (4,214) (2,966)
Issuance of Long-Term Debt................. -- 50,000 --
Issuance of Common Stock................... 1,767 755 42
Purchases of Treasury Stock................ (58,173) (40,492) (4,728)
Dividends Paid............................. (12,973) (11,149) (9,768)
--------- ----------- -----------
Net Cash Provided by Financing
Activities............................... 228,366 244,318 858,579
--------- ----------- -----------
Net Change in Cash and Cash Equivalents.... 33,459 (3,679) (18,219)
Cash and Cash Equivalents at Beginning of
Year..................................... 74,887 78,566 96,785
--------- ----------- -----------
Cash and Cash Equivalents at End of Year... $ 108,346 $ 74,887 $ 78,566
========= =========== ===========
Cash Payments:
Income Taxes............................. $ 43,697 $ 34,372 $ 18,017
========= =========== ===========
Interest Expense......................... 121,887 119,064 94,619
========= =========== ===========
Issuance of Stock for Employee Benefit
Plans.................................... 5,701 3,283 944
========= =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
53
<PAGE> 18
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
1. ACCOUNTING POLICIES
U.S. Trust Corporation (individually, the "Parent" collectively with its wholly
owned subsidiaries, the "Corporation") is an investment management company with
fiduciary and banking powers. Through its subsidiaries, including its principal
subsidiary United States Trust Company of New York (the "Trust Company"), the
Corporation provides investment management, private banking, special fiduciary
and corporate trust services to affluent individuals, families and institutions
located throughout the United States.
The accounting and reporting policies of the Corporation conform with
generally accepted accounting principles and general practice within the
investment management and banking industries. The preparation of financial
statements requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosures of contingent assets
and liabilities (including, but not limited to, the allowance for credit losses,
retirement and postretirement benefits and deferred taxes) as of the financial
statement dates and the reported amounts of revenues and expenses during the
reporting periods. Since management's judgment involves making estimates
concerning the likelihood of future events, the actual results could differ from
those estimates which will have a positive or negative effect on future period
results.
The following is a summary of the significant financial accounting
policies:
(a) BASIS OF PRESENTATION - The consolidated financial statements include the
accounts of the Corporation. All material intercompany accounts and transactions
have been eliminated in consolidation. In the opinion of management, all
adjustments necessary for a fair presentation of the consolidated financial
position and results of operations for the periods have been made. Such
adjustments, unless otherwise noted in these Notes to the Consolidated Financial
Statements and/or Management's Discussion and Analysis, are of a normal
recurring nature.
(b) TRUST ASSETS - Property (other than cash deposits) held by the Trust Company
or the Corporation's other bank subsidiaries in a fiduciary or agency capacity
for customers is not an asset of the Corporation and is not included in the
Consolidated Statement of Condition.
(c) INTEREST EARNING/BEARING FINANCIAL INSTRUMENTS - Interest income and expense
are accrued on interest earning/bearing financial instruments based upon the
contractual terms of the instruments. Premiums and discounts are amortized or
accreted, as applicable, on a basis that approximates the effective yield
method.
Securities that may be sold prior to maturity as part of asset/liability
management or in response to other factors are classified as securities
available for sale and carried at their estimated fair value with unrealized
gains and losses reported in a separate component of stockholders' equity, net
of taxes. Realized gains and losses from sales of securities are determined on a
specific identification cost basis.
(d) NONPERFORMING ASSETS - Nonperforming assets consist of non-accrual financial
instruments and other real estate owned. Interest accruals are discontinued when
principal or interest is contractually past due ninety days or more. In
addition, interest accruals may be discontinued when principal or interest is
contractually past due less than ninety days if, in the opinion of management,
the amount due is not likely to be paid in accordance with the terms of the
contractual agreement, even though the financial instruments are currently
performing. Any accrued but unpaid interest previously recorded on a non-accrual
financial instrument is reversed and recorded as a reduction of interest income.
Interest received on non-accrual financial instruments is applied either to the
outstanding principal balance or recorded as interest income, depending on
management's assessment of the ultimate collectibility of principal. Non-accrual
financial instruments are generally returned to accrual status only when all
delinquent principal and interest payments become current and the collectibility
of future principal and interest on a timely basis is reasonably assured.
Other real estate owned ("ORE") acquired through foreclosure in
satisfaction of the loan is recorded in other assets at the lower of the
carrying amount of the loan or the ORE's estimated fair value less estimated
selling and disposition costs. After the acquisition date of the ORE, operating
expenses and revenue, additional writedowns, as appropriate, and gains and
losses on the ultimate disposition of ORE are reported in other expenses.
(e) ALLOWANCE FOR CREDIT LOSSES - The allowance for credit losses is established
through charges to income based on management's evaluation of the adequacy of
54
<PAGE> 19
the allowance in meeting losses in the existing credit portfolio.
The adequacy of the allowance is reviewed continually by management, taking
into consideration current economic conditions, past loss experience and risks
inherent in the credit portfolio, including the value of impaired loans.
(f) PREMISES AND EQUIPMENT - Premises and equipment, including leasehold
improvements, are stated at cost less accumulated depreciation and amortization.
Depreciation and amortization are computed by the straight-line method over the
lesser of the term of the lease or the estimated useful lives of the assets.
(g) INTANGIBLE ASSETS - The fair value of intangible assets recorded as a result
of the acquisition of investment management enterprises is reported in other
assets on the Consolidated Statement of Condition and is amortized over the
estimated period benefited. An impairment review is performed periodically on
these assets.
(h) PERFORMANCE COMPENSATION - The Corporation's performance compensation plans
provide for awards in the form of cash, stock options and restricted stock
units. Cash awards are accrued and paid annually. The exercise price of stock
options is the fair market value on the date of grant and no compensation
expense is recorded. Restricted stock units are awarded under the Executive
Incentive Plan and are recorded as compensation expense ratably over the vesting
period of the award based on the fair market value of the award at the grant
date.
(i) INCOME TAXES - The Corporation files a consolidated Federal income tax
return. Deferred income taxes are provided for items that are recognized for
income tax purposes in years other than those in which they are recognized for
financial reporting purposes.
(j) DERIVATIVE FINANCIAL INSTRUMENTS - As part of its asset and liability
management activities, the Corporation employs interest rate swaps ("Swaps") to
ameliorate the interest rate risk associated with nontrading-related balance
sheet financial instruments. The Corporation utilizes Swaps solely as hedging
instruments.
To be effective as a hedge, Swaps must reduce interest rate risk and must
be designated as a hedge at the inception of the derivative contract. That is,
Swaps are linked to the related liability, whereby the terms of the Swap
generally equal the terms of the related liability, at the inception and
throughout the term of the derivative contract.
Swaps that qualify as hedges are accounted for under the accrual method;
the interest component associated with Swaps is recognized over the life of the
contract in net interest revenue and there is no recognition of unrealized gains
and losses on the Swap in the statement of financial condition. It has been the
Corporation's practice not to terminate its Swaps or sell the underlying
financial instruments that are being hedged by the Swaps. However, if the
Corporation did terminate a Swap, any amounts received from (a gain) or paid to
(a loss) the counterparty would be deferred and amortized over the shorter of
the remaining original life of the hedged item or the terminated Swap. In
addition if the hedged item was sold, the fair value of the Swap would be
recognized as an adjustment to the gain or loss of the hedged item.
(k) SHORT-TERM INVESTMENTS - Included in Short-Term Investments are $204.3
million and $242.6 million of interest bearing deposits with banks and $255.0
million and $145.0 million of federal funds sold at December 31, 1998 and 1997,
respectively.
(l) CASH AND CASH EQUIVALENTS - For purposes of the Consolidated Statement of
Cash Flows, the Corporation considers the Consolidated Statement of Condition
caption cash and due from banks as cash and cash equivalents. For purposes of
the U.S. Trust Corporation (Parent Company Only) Statement of Cash Flows, the
Corporation considers due from banks (which is included in the Statement of
Condition caption other assets) as cash and cash equivalents.
(m) RECLASSIFICATIONS - Certain amounts presented in prior periods have been
reclassified to conform with the current year's presentation.
- -------------------------------------------------------
2. OPERATING SEGMENTS
The Corporation has adopted Statement of Financial Accounting Standards No. 131,
"Disclosures about Segments of an Enterprise and Related Information," ("FAS
131") effective beginning with consolidated financial statements for each of the
years in the three year period ended December 31, 1998.
The Corporation is in the business of providing wealth management services
to individuals and institutions. It operates in two business segments - Personal
Wealth Management and Institutional. The Personal Wealth Management segment is
comprised of New York Wealth Management and National Wealth Management. National
Wealth Management includes all of the Corporation's operations outside of New
York that provide wealth management services to individuals and families.
Personal Wealth Management delivers an array of financial products and services
including investment management, consulting,
55
<PAGE> 20
trust, financial and estate planning and private banking to individuals and
families.
The Institutional segment engages in delivering a broad range of financial
products and services including investment management, corporate trust, special
fiduciary and brokerage to corporations, endowments, foundations, pension plans
and other institutional clients in New York as well as throughout the United
States. Institutional clients are served in New York and in each of the
Corporation's operating locations. See "The Business of U.S. Trust" section of
Management's Discussion and Analysis for further information on the services
provided by each of these business segments.
Business segment results are presented in order to reflect financial
performance and strategic direction. Fee revenue is generally credited to the
segment that has the contractual relationship with the client. Allocated net
interest revenue is credited to each segment based upon the level of financial
instruments managed by the segment, after taking into effect the internally
developed cost of fund transfers. All costs directly attributable to a business
segment are charged directly to that segment. These costs include salaries,
performance compensation, sales commissions and incentives, employee benefits,
occupancy and all other operating costs. Corporate expenses are charged to the
segments based upon management's determination of the direct or indirect
benefits realized by each segment utilizing such corporate services. The
amortization of intangibles resulting from business combinations are charged to
the segment that manages the acquired business.
Segment results are based upon estimates and judgements. Internal
management accounting reflects the way management views its business and may not
be comparable to other financial institutions. Comparability is achieved by
periodic restatement to conform with changes in organizational structure and
changes in allocation policies.
The information below reflects results by segments for the three years
ended December 31, 1998:
56
<PAGE> 21
<TABLE>
<CAPTION>
Personal Wealth Management
--------------------------------------- Total
(Dollars in Thousands) New York National Total Institutional Corporation
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1998
Fee revenue........................... $ 185,232 $ 71,189 $ 256,421 $ 83,198 $ 339,619
Allocated net interest revenue........ 70,668 20,962 91,630 10,400 102,030
----------- ----------- ----------- ------------ ------------
Total revenue......................... 255,900 92,151 348,051 93,598 441,649
Operating expense..................... 183,904 85,132 269,036 71,519 340,555
----------- ----------- ----------- ------------ ------------
Income before taxes................... $ 71,996 $ 7,019 $ 79,015 $ 22,079 $ 101,094
=========== =========== =========== ============ ============
Profit margin......................... 28.1% 7.6% 22.7% 23.6% 22.9%
=========== =========== =========== ============ ============
Percentage of income before taxes..... 71.2% 6.9% 78.1% 21.9%
============ =========== =========== ============
Total assets.......................... $ 3,065,637 $ 967,004 $ 4,032,641 $ 110,221 $ 4,142,862
=========== =========== =========== ============ ============
Assets under management............... $33,056,000 $13,644,000 $46,700,000 $ 28,336,000 $ 75,036,000
=========== =========== =========== ============ ============
Assets under administration........... $13,269,000 $2,067,000 $15,336,000 $311,124,000 $326,460,000
=========== =========== =========== ============ ============
Year ended December 31, 1997
Fee revenue........................... $ 158,437 $ 51,386 $ 209,823 $ 71,868 $ 281,691
Allocated net interest revenue........ 62,248 18,362 80,610 10,515 91,125
----------- ----------- ----------- ------------ ------------
Total revenue......................... 220,685 69,748 290,433 82,383 372,816
Operating expense..................... 164,127 61,286 225,413 63,744 289,157
----------- ----------- ----------- ------------ ------------
Income before taxes................... $ 56,558 $ 8,462 $ 65,020 $ 18,639 $ 83,659
=========== =========== =========== ============ ============
Profit margin......................... 25.6% 12.1% 22.4% 22.6% 22.4%
=========== =========== =========== ============ ============
Percentage of income before taxes..... 67.6% 10.1% 77.7% 22.3%
=========== ==========- =========== ============
Total assets.......................... $ 2,936,293 $ 766,835 $ 3,703,128 $ 111,854 $ 3,814,982
=========== =========== =========== ============ ============
Assets under management............... $27,408,000 $10,186,000 $37,594,000 $ 23,594,000 $ 61,188,000
=========== =========== =========== ============ ============
Assets under administration........... $ 9,883,000 $1,772,000 $11,655,000 $257,081,000 $268,736,000
=========== =========== =========== ============ ============
Year ended December 31, 1996
Fee revenue........................... $ 136,713 $ 40,837 $ 177,550 $ 66,661 $ 244,211
Allocated net interest revenue........ 55,446 13,131 68,577 9,935 78,512
----------- ----------- ----------- ------------ ------------
Total revenue......................... 192,159 53,968 246,127 76,596 322,723
Operating expense..................... 142,826 50,206 193,032 60,418 253,450
----------- ----------- ----------- ------------ ------------
Income before taxes................... $ 49,333 $ 3,762 $ 53,095 $ 16,178 $ 69,273
=========== =========== =========== ============ ============
Profit margin......................... 25.7% 7.0% 21.6% 21.1% 21.5%
=========== =========== =========== ============ ============
Percentage of income before taxes..... 71.2% 5.4% 76.6% 23.4%
=========== ========== =========== ===========
Total assets.......................... $ 2,603,601 $ 763,229 $ 3,366,830 $ 110,488 $ 3,477,318
=========== =========== =========== ============ ============
Assets under management............... $21,788,000 $7,317,000 $29,105,000 $ 24,194,000 $ 53,299,000
=========== =========== =========== ============ ============
Assets under administration........... $ 8,385,000 $1,519,000 $ 9,904,000 $222,379,000 $232,283,000
=========== =========== =========== ============ ============
</TABLE>
- -------------------------------------------------------
3. ACQUISITIONS
During 1998, the Corporation acquired Wood Island Associates, Inc., Maier &
Siebel, Inc., and McMurrey Investments Advisors, Inc. These firms provide
investment management services to high net worth individuals and institutions.
The aggregate amount of assets under management at the closing dates was
approximately $1.6 billion. The Corporation also acquired Strategic Trading
Corporation which provides consultation and agency services on in-kind stock
distributions and derivative hedging strategies to high net worth individuals.
The initial consideration paid at the closing of these business combinations was
approximately $32.9 million. Certain of these transactions provide for
additional payments of cash and the Corporation's common stock based upon
business retention and future profitability. Each transaction was accounted for
as a purchase.
During 1997, the Corporation acquired the assets and liabilities of
Florence Fearrington, Inc., a New York investment advisory firm that managed
approximately $400 million in assets, for approximately $7.2 million of the
Corporation's common stock. During 1996, the
57
<PAGE> 22
Corporation acquired Lilienthal Associates, a California based investment
advisory firm that managed approximately $270 million in assets, for
approximately $2.5 million of the Corporation's common stock. These transactions
were accounted for using the purchase method of accounting.
- -------------------------------------------------------
4. CASH AND DUE FROM BANKS
The average non-interest earning balances held at the Federal Reserve Bank for
the years ended December 31, 1998 and 1997 were $32.9 million and $37.4 million,
respectively. These amounts represent reserve requirements which must be
maintained on deposits. There are no other restrictions on cash and due from
banks.
- --------------------------------------------------------------------------------
5. SECURITIES
The amortized cost, estimated fair value and gross unrealized gains and losses
on securities available for sale as of December 31, 1998, 1997 and 1996, are
presented in the following table.
<TABLE>
<CAPTION>
Aggregate Gross Gross
Amortized Fair Unrealized Unrealized
(Dollars in Thousands) Cost Value Gains Losses
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
December 31, 1998:
U.S. treasury securities............. $ 274,553 $ 276,562 $ 2,050 $ 41
U.S. government sponsored agencies
and corporations.................. 561,095 564,256 5,631 2,470
State and municipal obligations...... 98,726 100,423 1,715 18
Collateralized mortgage
obligations(1).................... 10,076 10,128 53 1
All other............................ 106,408 106,719 435 124
---------- ---------- ------- ------
Total.................................. $1,050,858 $1,058,088 $ 9,884 $2,654
========== ========== ======= ======
December 31, 1997:
U.S. treasury securities............. $ 417,545 $ 419,189 $ 1,832 $ 188
U.S. government sponsored agencies
and corporations.................. 508,389 512,442 7,047 2,994
State and municipal obligations...... 72,650 73,658 1,009 1
Collateralized mortgage
obligations(1).................... 15,186 15,299 113 --
All other............................ 110,701 110,887 234 48
---------- ---------- ------- ------
Total.................................. $1,124,471 $1,131,475 $10,235 $3,231
========== ========== ======= ======
December 31, 1996:
U.S. treasury securities............. $ 514,180 $ 514,514 $ 831 $ 497
U.S. government sponsored agencies
and corporations.................. 427,866 427,642 2,426 2,650
State and municipal obligations...... 76,690 77,715 1,067 42
Collateralized mortgage
obligations(1).................... 25,666 25,859 193 --
All other............................ 120,208 120,189 24 43
---------- ---------- ------- ------
Total.................................. $1,164,610 $1,165,919 $ 4,541 $3,232
========== ========== ======= ======
</TABLE>
- --------------------------------------------------------------------------------
(1) Collateralized by either GNMA, Federal National Mortgage Association, or
Federal Home Loan Corporation obligations.
58
<PAGE> 23
A profile of the maturities of the securities portfolio as of December 31, 1998,
and the related weighted average yield on such securities is presented in the
following table.
<TABLE>
<CAPTION>
Within 1-5 5-10 Over 10
(Dollars in Thousands) 1 Year Years Years Years Total
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
U.S. government obligations...... $233,807 $ 40,746 -- -- $ 274,553
Federal agency obligations....... 125,034 379,357 $20,509 $36,195 561,095
State and municipal
obligations.................... 13,592 64,843 20,291 -- 98,726
Collateralized mortgage
obligations(1)................. -- -- -- 10,076 10,076
Other securities(2).............. 71,517 13,902 -- 3 85,422
-------- -------- ------- ------- ----------
Total at amortized cost(2)....... 443,950 498,848 40,800 46,274 1,029,872
Estimated fair value(2).......... 446,220 502,808 41,462 46,612 1,037,102
-------- -------- ------- ------- ----------
Net unrealized gains............. $ 2,270 $ 3,960 $ 662 $ 338 $ 7,230
Weighted average yield(3)........ 5.84% 5.95% 6.76% 5.95% 5.94%
======== ======== ======= ======= ==========
</TABLE>
- --------------------------------------------------------------------------------
(1) Collateralized Mortgage Obligations have been allocated over maturity
groupings based on contractual maturities. Expected maturities may differ
from contractual maturities because borrowers have the right to prepay
obligations with or without prepayment penalties.
(2) Excludes Federal Reserve Bank and Federal Home Loan Bank stock of
approximately $21 million.
(3) Yields have been computed by dividing annualized interest revenue, on a
taxable equivalent basis, by the amortized cost of the respective securities
as of December 31, 1998.
The components of net securities gains for the years ended December 31, 1998,
1997 and 1996 are presented in the following table.
<TABLE>
<CAPTION>
Years Ended
December 31,
---------------------
(Dollars in Thousands) 1998 1997 1996
- ------------------------------------------------------
<S> <C> <C> <C>
Gross realized gains from
sales, maturities, calls, and
mandatory redemptions $4 $218 $ 1,857
Gross realized (losses) from
sales, maturities, calls, and
mandatory redemptions -- (2) (1,215)
-- ---- -------
Securities gains, net $4 $216 $ 642
== ==== =======
</TABLE>
At December 31, 1998 and 1997, financial instruments in the amount of
$230.3 million and $314.3 million, respectively, were pledged to secure public
deposits, to qualify for fiduciary powers and for other purposes or as
collateral for borrowings.
- --------------------------------------------------------------------------------
6. LOANS
The following is an analysis of the composition of the loan portfolio.
<TABLE>
<CAPTION>
December 31,
--------------------------------------------------------------
(Dollars in Thousands) 1998 1997 1996 1995 1994
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Private banking:
Residential real estate
mortgages...................... $1,630,500 $1,358,003 $1,093,107 $ 937,856 $ 851,074
Other............................. 525,614 537,024 525,446 457,843 490,719
---------- ---------- ---------- ---------- ----------
Total private banking loans......... 2,156,114 1,895,027 1,618,553 1,395,699 1,341,793
---------- ---------- ---------- ---------- ----------
Short-term trust credit
facilities........................ -- -- -- -- 154,988
Loans to financial institutions for
purchasing and carrying
securities........................ 31,972 41,064 62,866 61,372 126,640
All other........................... 2,721 2,758 6,722 2,624 3,477
---------- ---------- ---------- ---------- ----------
Total............................... $2,190,807 $1,938,849 $1,688,141 $1,459,695 $1,626,898
========== ========== ========== ========== ==========
</TABLE>
59
<PAGE> 24
An analysis of nonperforming assets is presented in the following table.
<TABLE>
<CAPTION>
December 31,
---------------------------------------------
(Dollars in Thousands) 1998 1997 1996 1995 1994
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Non-accrual loans................................... $6,203 $9,666 $ 8,882 $13,285 $ 6,371
Other real estate owned, net........................ 534 -- 727 9,586 11,884
------ ------ ------- ------- -------
Total nonperforming assets.......................... $6,737 $9,666 $ 9,609 $22,871 $18,255
====== ====== ======= ======= =======
Average non-accrual loans........................... $8,322 $8,829 $12,261 $ 8,475 $ 5,965
====== ====== ======= ======= =======
</TABLE>
The Corporation considers all non-accrual loans impaired. The impact of interest
revenue which would have been earned on non-accrual loans versus interest
revenue recognized on these loans was negligible for the years 1994 through
1998.
There was no reserve for ORE in 1998 and 1997. The reserve for ORE was
$477,000, $978,000 and $478,000 in 1996, 1995 and 1994, respectively.
- --------------------------------------------------------------------------------
7. ALLOWANCE FOR CREDIT LOSSES
An analysis of the allowance for credit losses is presented for the five-year
period ended December 31, 1998.
<TABLE>
<CAPTION>
(Dollars in Thousands) 1998 1997 1996 1995 1994
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Analysis of allowance for credit losses:
Balance, January 1............................... $18,294 $16,693 $16,086 $14,699 $13,393
------- ------- ------- ------- -------
Charge-offs:
Private banking................................ (327) (160) (658) (1,910) (1,349)
Other.......................................... -- -- (517) (1,520) (150)
------- ------- ------- ------- -------
Total charge-offs.............................. (327) (160) (1,175) (3,430) (1,499)
------- ------- ------- ------- -------
Recoveries:
Private banking................................ 800 684 702 2,844 611
Other.......................................... 47 327 80 373 194
------- ------- ------- ------- -------
Total recoveries............................... 847 1,011 782 3,217 805
------- ------- ------- ------- -------
Net (charge-offs) recoveries..................... 520 851 (393) (213) (694)
------- ------- ------- ------- -------
Provision charged to income...................... 600 750 1,000 1,600 2,000
------- ------- ------- ------- -------
Balance, December 31............................. $19,414 $18,294 $16,693 $16,086 $14,699
======= ======= ======= ======= =======
</TABLE>
The Corporation maintains the allowance for credit losses at a level deemed to
be adequate. The level of the allowance is based on management's judgment as to
the current condition of the loan portfolio, determined by a continuous
surveillance process. Loan officers are expected to be the first to identify
potential credit problems. In addition, experienced credit review professionals
provide independent internal oversight of these credits.
On a quarterly basis, management determines which credits, if any, are to
be charged off partially or in full. This is based on a review of all
underperforming credits highlighted in the surveillance process. Since
substantially all of the Corporation's loan portfolio relates to private banking
activities, the Corporation does not apportion the allowance among specific
credit categories.
- -------------------------------------------------------
8. PREMISES AND EQUIPMENT
An analysis of premises and equipment is presented in the following table.
<TABLE>
<CAPTION>
December 31,
-------------------
(Dollars in Thousands) 1998 1997
- --------------------------------------------------
<S> <C> <C>
Land $ 1,675 $ 1,675
Building 13,820 13,414
Leasehold improvements 74,670 70,773
Furniture and equipment 50,520 48,247
-------- --------
140,685 134,109
Less: accumulated amortization
and depreciation (63,665) (56,546)
-------- --------
Total $ 77,020 $ 77,563
======== ========
</TABLE>
Amortization and depreciation expense amounted to $14.0 million, $10.3 million
and
60
<PAGE> 25
$9.0 million for 1998, 1997 and 1996, respectively.
Included in Other Operating Expenses is approximately $12.4 million in
1998, $9.2 million in 1997 and $7.7 million in 1996 of equipment expense.
- -------------------------------------------------------
9. SHORT-TERM CREDIT FACILITIES
An analysis of borrowings under short-term credit facilities is presented in the
following table.
<TABLE>
<CAPTION>
(Dollars in Thousands) 1998 1997 1996
- -------------------------------------------------------
<S> <C> <C> <C>
Federal funds purchased:
Year-end balance $30,250 $ 10,175 $ 12,700
Daily average balance 45,271 63,965 121,929
Maximum end-of-month
balance 34,075 194,765 288,100
Weighted average
interest rate during
year 5.37% 5.48% 5.42%
Weighted average
interest rate at year-
end 4.75% 6.65% 6.10%
Securities sold under
agreements to
repurchase:
Year-end balance $90,309 $169,413 $ 70,516
Daily average balance 116,740 108,007 43,966
Maximum end-of-month
balance 148,185 177,851 120,053
Weighted average
interest rate during
year 5.11% 5.29% 5.08%
Weighted average
interest rate at year-
end 4.86% 5.87% 5.69%
Other borrowed funds:
Year-end balance $20,366 -- $157,067
Daily average balance 6,145 $114,479 47,285
Maximum end-of-month
balance 50,066 163,086 157,066
Weighted average
interest rate during
year 5.94% 5.68% 5.43%
Weighted average
interest rate at year-
end 5.98% --% 5.61%
</TABLE>
The term of federal funds purchased and securities sold under agreements to
repurchase generally do not exceed one week.
Included in other borrowed funds at December 31, 1998, is the utilization
of $20.0 million of the Corporation's $40.0 million unsecured revolving credit
facility. The interest rate on this facility, which is based on LIBOR, was
5.98%. There were no funds borrowed under this facility at December 31, 1997. At
December 31, 1996, the utilization was $17.0 million and the interest rate was
5.88%. This credit facility expires on July 28, 1999.
- -------------------------------------------------------
10. LONG-TERM DEBT
<TABLE>
<CAPTION>
December 31,
-----------------
(Dollars in Thousands) 1998 1997
- --------------------------------------------------
<S> <C> <C>
8.414% Trust preferred capital
securities $50,000 $50,000
8.35% Senior unsecured ESOP
notes due 1999 3,773 7,254
Federal home loan bank 14,000 15,000
------- -------
Total $67,773 $72,254
======= =======
</TABLE>
The Trust Preferred Capital Securities qualify as Tier 1 Capital under
guidelines of the Board of Governors of the Federal Reserve System (the "Board
of Governors") and have no voting rights. Holders of the Trust Preferred Capital
Securities will be entitled to receive cumulative cash distributions
semi-annually. The Corporation has the right to redeem the Trust Preferred
Capital Securities prior to their stated maturity of February 1, 2027, on or
after February 1, 2007, upon approval (if then required) of the Board of
Governors.
The 8.35% Senior Unsecured ESOP Notes due 1999 ("ESOP Notes") are
obligations of the Corporation that require annual payments of principal and
interest. The Corporation loaned the proceeds from the ESOP Notes to the trust
established to administer the 401(k) Plan and ESOP of United States Trust
Company of New York and Affiliated Companies ("401(k) Plan") on the same terms.
The 401(k) Plan used the proceeds to purchase 1,380,996 shares of common stock
from the Corporation's treasury stock holdings for an Employee Stock Ownership
Plan ("the ESOP"). (See "Notes to the Consolidated Financial Statements No.
18.") The ESOP Notes call for a final principal repayment of $3.8 million
payable on February 1, 1999. Interest expense related to the ESOP Notes was
approximately $0.3 million, $0.6 million and $0.9 million for the years 1998,
1997 and 1996, respectively.
The Federal Home Loan Bank ("FHLB") borrowings have maturities ranging from
1999 to 2002. The FHLB borrowings bear interest ranging between 6.25% and 6.76%
and are collateralized by the pledge of qualifying assets.
61
<PAGE> 26
- -------------------------------------------------------
11. NET INTEREST REVENUE
The following is an analysis of the composition of net interest revenue. See the
"Financial and Other Data Supplement" for average balance and related yield
analyses on a tax equivalent basis.
<TABLE>
<CAPTION>
Years Ended December 31,
(Dollars ------------------------------
in Thousands) 1998 1997 1996
- ----------------------------------------------------
<S> <C> <C> <C>
Interest revenue:
Loans $149,493 $133,433 $117,459
Securities:
Taxable 58,622 68,053 48,046
Tax-exempt 3,878 3,893 3,244
Short-term
investments 10,144 5,467 4,192
Deposits with banks 2,606 1,675 1,790
-------- -------- --------
Total interest
revenue 224,743 212,521 174,731
-------- -------- --------
Interest expense:
Deposits 107,846 99,623 82,551
Short-term credit
facilities 8,755 15,714 11,374
Long-term debt 5,516 5,525 1,936
-------- -------- --------
Total interest
expense 122,117 120,862 95,861
-------- -------- --------
Net interest income 102,626 91,659 78,870
Provision for credit
losses (600) (750) (1,000)
Securities gains, net 4 216 642
-------- -------- --------
Net interest revenue $102,030 $ 91,125 $ 78,512
======== ======== ========
</TABLE>
- -------------------------------------------------------
12. INCOME TAXES
The current and deferred portions of income tax expense (benefit) included in
the Consolidated Statement of Income are presented in the following table.
<TABLE>
<CAPTION>
Years Ended December 31,
(Dollars ---------------------------
in Thousands) 1998 1997 1996
- --------------------------------------------------
<S> <C> <C> <C>
Current:
Federal $34,920 $26,876 $21,409
State and local 7,786 8,689 5,985
------- ------- -------
Total current
income taxes 42,706 35,565 27,394
------- ------- -------
Deferred:
Federal (2,626) (1,380) 238
State and local (653) (1,558) 737
------- ------- -------
Total deferred
income taxes
(benefits) (3,279) (2,938) 975
------- ------- -------
Total $39,427 $32,627 $28,369
======= ======= =======
</TABLE>
A reconciliation of the Federal statutory income tax rate with the Corporation's
effective income tax rate is presented in the following table.
<TABLE>
<CAPTION>
Years Ended December 31,
-----------------------------------------------------
(Dollars in Thousands) 1998 1997 1996
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Tax Expense at U.S. Federal income tax rate...... $35,383 35.0% $29,281 35.0% $24,246 35.0%
Increase (decrease) in effective rate resulting
from:
Tax-exempt interest revenue.................... (1,150) (1.1) (1,298) (1.5) (1,059) (1.5)
State and local taxes, net of federal income
tax benefit.................................. 4,636 4.6 4,635 5.5 4,369 6.3
Miscellaneous items............................ 558 0.5 9 -- 813 1.2
------- ---- ------- ----- ------- ----
Total tax expense and effective rate............. $39,427 39.0% $32,627 39.0% $28,369 41.0%
======= ==== ======= ===== ======= ====
</TABLE>
62
<PAGE> 27
The components of total income tax expense for the years ended December 31,
1998, 1997 and 1996 that are applicable to operations and stockholders' equity
are presented in the following table.
<TABLE>
<CAPTION>
Years Ended December 31,
(Dollars ---------------------------
in Thousands) 1998 1997 1996
- --------------------------------------------------
<S> <C> <C> <C>
Income taxes
applicable to:
operations $39,427 $32,627 $28,369
Stockholders' equity:
Change in fair
value of
securities
available for
sale 37 2,573 (774)
Tax benefit on
stock-based
awards (1,642) (1,258) --
Tax benefit on
dividends paid to
the ESOP on
unallocated
shares (93) (143) (144)
------- ------- -------
Total $37,729 $33,799 $27,451
======= ======= =======
</TABLE>
The net deferred tax asset is included in "other assets" in the Consolidated
Statement of Condition. Deferred tax (assets) liabilities as of December 31,
1998 and 1997 resulted from the items listed in the following table.
<TABLE>
<CAPTION>
December 31,
-------------------
(Dollars in Thousands) 1998 1997
<S> <C> <C>
- --------------------------------------------------
Deferred tax (assets):
Employee benefits $(45,570) $(40,857)
Trust and fiduciary
activities (11,980) (11,820)
Property and equipment
leasing (9,433) (11,806)
Allowance for credit losses (8,591) (8,136)
Other (4,090) (4,363)
-------- --------
(79,664) (76,982)
======== ========
Deferred tax liabilities:
Net unrealized gains on
securities available for
sale 3,214 3,177
Premises and equipment 7,503 9,547
Other 8,144 6,697
-------- --------
18,861 19,421
-------- --------
Net deferred tax (asset) $(60,803) $(57,561)
======== ========
</TABLE>
Deferred tax assets are attributable to temporary differences primarily
generated from expenses recognized for financial reporting purposes that are not
yet deductible on the tax return. The Corporation believes it is more likely
than not that it will generate sufficient taxable income in future periods to
absorb these items as they are recognized as deductions on the tax return.
- -------------------------------------------------------
13. EARNINGS PER SHARE
The calculations of Basic Earnings per Share and Diluted Earnings per Share for
the three year period ended December 31, 1998 are reflected in the following
table. The impact of the stock split distributed on February 21, 1997 has been
reflected in all earnings per share calculations.
<TABLE>
<CAPTION>
Years Ended December 31,
---------------------------
(In Thousands) 1998 1997 1996
- --------------------------------------------------
<S> <C> <C> <C>
Net income for basic
earnings per share $61,667 $51,032 $40,904
Dividend equivalents
on stock based
benefit plans
(after-tax) 682 550 423
------- ------- -------
Net income for
diluted earnings
per share $62,349 $51,582 $41,327
------- ------- -------
Weighted average
shares outstanding
for basic earnings
per share 18,750 19,354 19,538
Dilutive effect of
stock based
benefit plans 2,335 2,267 1,692
------- ------- -------
Total dilutive
shares
outstanding 21,085 21,621 21,230
------- ------- -------
Basic earnings per
share $ 3.29 $ 2.64 $ 2.09
======= ======= =======
Diluted earnings per
share $ 2.96 $ 2.39 $ 1.95
======= ======= =======
</TABLE>
- -------------------------------------------------------
14. FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK
In the normal course of business, the Corporation enters into various
transactions involving off-balance sheet financial instruments to meet the needs
of its customers and to reduce its own exposure to interest rate risk. These
transactions may be subject to credit risk. As compensation for the risks
assumed, these instruments generate interest or fee revenue or expense. The
controls used to monitor the credit and market risks of off-balance sheet
financial instruments are consistent with those associated with the
Corporation's on-balance sheet activities.
- -------------------------------------------------------
Credit-Related Financial Instruments
Credit-related financial instruments include firm commitments to extend credit
("commitments") and standby letters of credit ("standbys"). The credit risk
associated with these instruments varies depending on the creditworthiness of
the customer and the value of any collateral held. Collateral requirements vary
by type of instrument. The contractual amounts of these instruments represent
the amounts at risk should the contract be fully
63
<PAGE> 28
drawn upon, the client default, and the value of any existing collateral become
worthless.
Commitments are legally binding agreements to lend to a customer that
generally have fixed expiration dates or other termination clauses, may require
payment of a fee and are not secured by collateral until funds are advanced. The
Corporation evaluates each customer's creditworthiness on a case-by-case basis
prior to approving a commitment or advancing funds under a commitment and
determining the related collateral requirement. Collateral held includes
marketable securities, real estate mortgages or other assets. The majority of
the Corporation's commitments are related to mortgage lending to private banking
clients and backup lines of credit for various financial institutions. The
mortgage lending commitments are generally expected to be utilized, while the
backup lines of credit typically expire unused. Commitments totaled $248.9
million and $193.2 million at December 31, 1998 and 1997, respectively.
Standbys are conditional commitments issued by the Corporation to guarantee
the performance of a customer to a third party. For example, standbys are issued
to satisfy margin requirements incurred by investment banking and broker/dealer
financial institutions for their activities conducted on organized exchanges, or
in other situations standbys guarantee performance under lease and other
agreements by professional business corporations and for other purposes. The
credit risk involved in issuing standbys is essentially the same as that
involved in extending loans. Standbys outstanding at December 31, 1998 and 1997
amounted to $87.0 million and $87.6 million, respectively. Collateral to the
extent appropriate is obtained based on management's credit assessment of the
customer. At December 31, 1998, $75.9 million of the standbys outstanding were
partially or fully collateralized by cash, marketable equity securities,
marketable debt securities (including corporate and U.S. Treasury debt
securities) and other assets, compared with $69.8 million at December 31, 1997.
- -------------------------------------------------------
Derivative Financial Instruments
As part of its overall asset and liability management process, the Corporation
utilizes Swaps as hedges. Swaps are used to ameliorate the interest rate
characteristics of nontrading-related balance sheet instruments. The Corporation
enters into Swaps with counterparties as a principal.
The market values of Swaps can vary depending on movements in interest
rates. The measurement of the market risks associated with Swaps is meaningful
only when all related and offsetting transactions are identified. The notional
or contractual amounts of Swaps are indications of the volume of transactions
and do not represent amounts at risk. The amounts at risk upon default are
generally limited to the unrealized market value gains of the Swaps, if any, and
will vary based on changes in interest rates. The risk of default depends on the
creditworthiness of the counterparty. The Corporation evaluates the
creditworthiness of its counterparties as part of its normal credit review
procedures.
At December 31, 1998 and 1997, the Corporation was a counterparty to Swaps
with a total notional principal amount of $560.0 million and $666.5 million,
respectively. Swaps involve the exchange of fixed and floating rate interest
payment obligations computed on notional principal amounts. Outstanding Swaps
had a weighted average maturity of approximately 2.4 years at December 31, 1998
and 3.6 years at December 31, 1997.
- -------------------------------------------------------
15. FAIR VALUE OF FINANCIAL INSTRUMENTS
Statement of Financial Accounting Standards No. 107, "Disclosures about Fair
Value of Financial Instruments," ("FAS 107") requires the disclosure of the
estimated fair values of financial instruments. Substantially all of the
Corporation's assets, liabilities and off-balance sheet products are considered
financial instruments as defined by FAS 107. Fair value is defined as the price
at which a financial instrument could be liquidated in an orderly manner over a
reasonable time period under present market conditions.
FAS 107 requires that the fair value of financial instruments be estimated
using various valuation methodologies. Quoted market prices, when available, are
used as the measure of fair value. Where quoted market prices are not available,
fair values have been estimated using primarily discounted cash flow analyses
and other valuation techniques. These derived fair values are significantly
affected by assumptions used, principally the timing of future cash flows and
the discount rate. Because assumptions are inherently subjective, the estimated
fair values may not be substantiated by comparison to third party evidence and
may not be indicative of the value that could be realized in a sale or
settlement of the financial instrument.
A discussion of the fair value estimation methodologies used for material
financial instruments follows.
- -------------------------------------------------------
Securities
The estimated fair value of securities is based upon quoted bid market prices,
where
64
<PAGE> 29
available, or fair value quotes obtained from third party pricing services.
Securities are reported in the Consolidated Statement of Condition at estimated
fair value.
- -------------------------------------------------------
Loans
The estimated fair value of the Corporation's performing fixed rate loans
(primarily residential real estate mortgages) was calculated by discounting
contractual cash flows adjusted for current prepayment estimates. The discount
rates were based on the interest rates charged to current customers for
comparable loans. The Corporation's performing adjustable rate loans reprice
frequently at current market rates. Therefore, the fair value of these loans has
been estimated to be approximately equal to their carrying amount. Estimated
fair value for nonperforming loans was based upon a discounted estimated cash
flow method and, for residential real estate mortgage loans, underlying
collateral. The discount rate used was commensurate with the risk associated
with the estimated cash flows.
- -------------------------------------------------------
Long-Term Debt
The estimated fair value of long-term debt was calculated using a discounted
cash flow method, where the estimated cash flows considered contractual
principal and interest payments. The discount rate used was the current rate for
borrowings with comparable remaining maturities.
The estimated fair value of the trust preferred capital securities was
obtained from quotes by third party investment bankers.
- -------------------------------------------------------
Interest Rate Swap Agreements
The Corporation is the net fixed rate payor under all of its Swaps and at
December 31, 1998 and 1997 had an accrued net payable of $908,000 and $678,000,
respectively. The estimated fair value of Swaps is obtained from dealer quotes.
These values represent the estimated amount that the Corporation would have to
pay or receive to terminate the Swaps, taking into account current interest
rates and, when appropriate, the current creditworthiness of the counterparties.
- -------------------------------------------------------
Other Financial Instruments
The Corporation's other financial instruments are generally short-term in nature
and contain negligible credit risk. These instruments consist of cash and due
from banks, short-term investments, accrued interest receivable and accounts
receivable, demand deposit liabilities, time deposit liabilities, short-term
credit facilities and accrued interest payable and accounts payable.
Consequently, carrying amounts of these assets and liabilities approximate their
estimated fair value.
The estimated fair values of the Corporation's significant, long-term
financial instruments are reflected in the following table.
<TABLE>
<CAPTION>
December 31,
---------------------------------------------------------------
1998 1997
------------------------------ ------------------------------
* *
Par/ Unrealized Par/ Unrealized
Notional Fair Gain Notional Fair Gain
(Dollars in Millions) Amount Value (Loss) Amount Value (Loss)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Securities....................... $1,051 $1,058 $ 7 $1,124 $1,131 $ 7
Loans............................ 2,171 2,192 21 1,921 1,935 14
Long-term debt................... 68 70 (2) 72 76 (4)
Interest rate swap agreements.... 560 (18) (18) 667 (11) (11)
- --------------------------------------------------------------------------------------------------
</TABLE>
* The par value is the amortized cost for securities, the carrying amount, net
of the allowance for credit losses for loans, the carrying amount for
long-term debt and the notional amount for interest rate swaps.
- -------------------------------------------------------
16. RENTAL COMMITMENTS ON PREMISES AND EQUIPMENT
Most of the Corporation's operations are conducted from premises that are
leased. The initial lease periods expire between 2000 and 2016. The lease for
the Corporation's headquarters building expires in 2014 and is renewable at the
Corporation's option for two successive terms of ten years each at the then
current market rate.
Rent expense on operating leases for the years 1998, 1997 and 1996 was
$26.4 million, $30.1 million and $26.1 million, respectively. Operating lease
rent expense includes rent escalation adjustments of $7.0 million in 1998, $11.0
million in 1997 and $6.6 million in 1996 for increases in certain operating
expenses of the landlords as defined in the lease agreements.
Minimum rental commitments, including the current level of escalation
costs, on
65
<PAGE> 30
non-cancelable leases as of December 31, 1998 follows.
<TABLE>
<CAPTION>
Minimum
(Dollars in Thousands) Rentals
- -------------------------------------------------
<S> <C>
Year ending December 31:
1999 $ 27,443
2000 29,098
2001 28,951
2002 28,742
2003 28,303
Later years 266,518
--------
Total minimum payments required $409,055
========
</TABLE>
- -------------------------------------------------------
17. CONTINGENCIES
There are various pending and threatened actions and claims against the
Corporation in which the Corporation has denied liability and which it will
vigorously contest. Management, after consultation with counsel, is of the
opinion that the ultimate resolution of such matters is unlikely to have any
future material adverse effect on the Corporation's financial position, results
of operations or cash flows.
- -------------------------------------------------------
18. PERFORMANCE COMPENSATION
Cash-Based Performance Compensation
The Corporation's cash-based performance compensation award plans provide for
annual cash performance awards to eligible employees. The overall size of the
cash-based performance compensation award is determined by the achievement of
certain corporate financial objectives established by the Board of Directors at
the beginning of each year. Eligible employee awards are determined on an
individual basis based upon an employee's contribution to the overall success of
the Corporation. Total cash-based performance compensation was $38.5 million,
$31.3 million and $24.4 million in 1998, 1997 and 1996, respectively.
- -------------------------------------------------------
Stock-Based Compensation
The Executive Incentive Plan (the "EIP") is authorized to grant up to 540,000
Restricted Stock Units ("RSUs") to eligible employees. The overall size of the
stock-based awards are determined by the achievement of certain corporate
financial objectives established by the Board of Directors at the beginning of
each year. Eligible employee awards are determined on an individual basis based
upon an employee's contribution to the overall success of the Corporation. RSUs
accrue dividend equivalent credits and generally cliff vest (the entire award
typically vests at the end of the five year vesting period) at which time they
may be converted into shares of the Parent's common stock. During 1998, the
Corporation granted 94,915 RSUs with a weighted average fair value of $64.64 per
unit. During 1997, 105,114 RSUs were granted with a weighted average fair value
of $47.78 per unit. The fair value of a RSU is determined by averaging the high
and low prices of a share of common stock of the Parent on the date of grant.
The value of the grant is recorded as a component of compensation expense
ratably over the vesting period. Total stock-based compensation expense which is
included as a component of performance compensation in the consolidated
statement of income was $2.6 million, $1.1 million and $158,000 in 1998, 1997
and 1996, respectively. At December 31, 1998, the Corporation had 308,587 RSUs
available for future issuance.
The 1995 Stock Option Plan (the "Option Plan") provides for stock option
grants to eligible employees. The Option Plan authorizes the issuance of a
maximum of 3,200,000 options to acquire shares of the Parent's common stock. At
December 31, 1998, the Parent had 872,212 shares of common stock available for
issuance. Under the Option Plan, the Corporation awards either incentive stock
options or non-qualified stock options. The stock options expire ten years from
the date of grant and their exercise price is not less than the fair market
value of a common share on the date of grant. Awards vest either after five
years or in four equal annual installments.
Options granted are issued with the exercise price at least equal to the
fair market value of a common share of the Parent.
The following is a summary of stock option transactions which occurred
under the
66
<PAGE> 31
Option Plan for the three-year period ended December 31, 1998.
<TABLE>
<CAPTION>
Weighted
Average
Exercise
Shares Price
Under Option Price Per
Option Per Share Share
- -------------------------------------------------------------
<S> <C> <C> <C>
Balance, December 31,
1995 988,800 $20.69 -- $24.83 $22.53
Granted 503,100 23.63 -- 27.63 23.72
Exercised (2,048) 20.69 20.69
Canceled (6,276) 20.69 -- 23.63 22.84
--------- --------------- ------
Balance, December 31,
1996 1,483,576 20.69 -- 27.63 22.93
Granted 576,350 44.69 -- 56.63 47.75
Exercised (40,425) 20.69 -- 23.63 21.72
Canceled (34,900) 20.69 -- 47.88 31.10
--------- --------------- ------
Balance, December 31,
1997 1,984,601 20.69 -- 56.63 30.02
Granted 385,750 59.13 -- 74.88 63.84
Exercised (76,057) 20.69 -- 47.88 25.62
Canceled (19,439) 20.69 -- 62.63 45.13
---------- --------------- ------
Balance, December 31,
1998 2,274,855 $20.69 -- $74.88 $35.78
========= ================ ======
</TABLE>
Options outstanding at December 31, 1998 are further detailed in the following
table:
<TABLE>
<CAPTION>
Remaining
Shares Weighted
Under Option Price Average
Option Per Share Life
- --------------------------------------
<S> <C> <C>
1,352,001 $20.69 -- $27.63 6.9 Years
542,854 44.69 -- 59.13 8.2 Years
380,000 62.63 -- 74.88 9.2 Years
=========
2,274,855
=========
</TABLE>
The number of options exercisable and their weighted average exercise price for
the three year period ended December 31, 1998 are detailed in the following
table:
<TABLE>
<CAPTION>
December 31, December 31, December 31,
1998 1997 1996
- -----------------------------------------------------------------
<S> <C> <C> <C>
Options exercisable 693,020 351,493 134,788
======= ======= =======
Weighted average
exercise price of
exercisable options $ 26.86 $ 21.63 $ 20.69
======= ======= =======
</TABLE>
The fair value of each option grant is estimated using the Black-Scholes option
pricing model. The weighted average assumptions used for grants made in 1998,
1997 and 1996 are as follows:
<TABLE>
<CAPTION>
1998 1997 1996
Grants Grants Grants
- ---------------------------------------------------
<S> <C> <C> <C>
Dividend yield 2.6% 2.7% 2.1%
Expected volatility 24.7% 22.2% 24.4%
Risk-free interest
rate 5.6% 6.4% 5.8%
Expected option life 5 Years 5 Years 5 Years
</TABLE>
The weighted average fair value of options granted in 1998, 1997 and 1996 was
$15.45 per option, $11.25 per option and $6.17 per option, respectively. If
compensation cost for the Corporation's Option Plan had been recorded based on
the fair value at the grant dates for awards and recognized over the vesting
period of the award, the impact on the Corporation's net income and earnings per
share would have been as follows:
<TABLE>
<CAPTION>
As Pro
(Dollars in Thousands) Reported Forma
- --------------------------------------------------
<S> <C> <C>
For the year ended December
31, 1998:
Net income $61,667 $58,256
Diluted earnings per share $ 2.96 $ 2.80
For the year ended December
31, 1997:
Net income $51,032 $48,327
Diluted earnings per share $ 2.39 $ 2.26
For the year ended December
31, 1996:
Net income $40,904 $39,185
Diluted earnings per share $ 1.95 $ 1.87
</TABLE>
- -------------------------------------------------------
EMPLOYEE STOCK OWNERSHIP PLAN
The Corporation sponsors a 401(k) Plan and ESOP (collectively, the "Plan")
covering all employees who satisfy a one year service requirement. Depending
upon the Corporation satisfying certain profitability criteria and other
factors, eligible employees receive merit-based annual awards calculated as a
percentage of such employees' compensation. Awards are comprised of an ESOP
award, which is mandatorily contributed to the Plan, and an elective award,
which may be taken in cash or, subject to certain limitations, deferred and
contributed to the Plan.
As of December 31, 1998, the ESOP held a total of 1,729,071 shares of the
Corporation's common stock with 1,504,860 shares allocated to participant
accounts and 224,211 unallocated. Unallocated ESOP shares are pledged as
collateral for its debt. As the debt is repaid, shares are released from
collateral and allocated to active employees. On February 1, 1999 upon making
the final debt service payment, all remaining unallocated shares were allocated
to eligible participants. Dividends on ESOP shares used for debt repayment were
$1.2 million,
67
<PAGE> 32
$1.1 million and $1.0 million in 1998, 1997 and 1996, respectively.
Dividends declared on allocated and unallocated ESOP shares are recorded as
deductions from retained earnings. The Corporation receives a tax benefit for
dividends paid on allocated shares. These tax benefits are recorded in the
Consolidated Statement of Income as a reduction of income tax expense. The tax
benefits for dividends paid on unallocated shares are recorded in the
Consolidated Statement of Condition as an increase in retained earnings.
For earnings per share purposes, shares held by the ESOP, both allocated
and unallocated, are considered to be outstanding.
- -------------------------------------------------------
19. PENSION AND OTHER POSTRETIREMENT BENEFIT PLANS
The Corporation provides pension and other postretirement benefits to qualifying
employees.
The pension plan is a trusteed, noncontributory, qualified defined benefit
pension plan that provides pension benefits to substantially all employees.
Benefits are based upon years of service, average compensation over the final
years of service and the social security covered compensation. The Corporation's
funding policy is consistent with the funding requirements of Federal laws and
regulations. The pension plan's investment assets are managed by the Trust
Company. The pension plan's investment assets principally are invested in shares
of various domestic and international equity, fixed income and money market
portfolios of the Excelsior Series of mutual funds. The Trust Company is the
investment advisor of the Excelsior funds.
The Corporation uses the projected unit credit cost method to compute the
vested benefit obligation, where the vested benefit obligation is the actuarial
present value of the vested benefits to which the employee is entitled based on
the employee's expected date of separation or retirement.
The Corporation provides certain health care and life insurance benefits
for all employees, certain qualifying retired employees and their dependents.
Postretirement medical and life insurance benefits are accrued during the years
that the employee renders service to reflect the expected cost of providing
health care and life insurance and other benefits to an employee upon
retirement.
The following table summarizes the components of retirement and
postretirement benefit expenses (credits), the funded status of the
Corporation's qualified retirement plan, changes in the benefit obligations
related to these plans and the major assumptions used to determine these
amounts.
68
<PAGE> 33
<TABLE>
<CAPTION>
1998 1997 1996
------------------------------- ------------------------------ ------------------------------
Pension Health & Pension Health & Pension Health &
(Dollars in Thousands) Plan Life Total Plan Life Total Plan Life Total
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Components of expense
(credit):
Service cost and
expenses............ $ 6,617 $ 278 $ 6,895 $ 5,402 $ 309 $ 5,711 $ 5,565 $ 307 $ 5,872
Interest cost......... 14,077 1,779 15,856 12,458 2,182 14,640 12,042 1,865 13,907
Amortization of prior
service cost........ 177 (391) (214) 177 (391) (214) -- (391) (391)
Actual return on plan
assets.............. (46,341) -- (46,341) (45,135) -- (45,135) (19,594) -- (19,594)
Other net
amortizations and
deferrals(1)........ 30,541 (6,759) 23,782 24,455 285 24,740 (646) 519 (127)
-------- -------- -------- -------- -------- -------- -------- -------- --------
Net expense
(credit).......... $ 5,071 $ (5,093) $ (22) $ (2,643) $ 2,385 $ (258) $ (2,633) $ 2,300 $ (333)
======== ======== ======== ======== ======== ======== ======== ======== ========
- ---------------------------------------------------------------------------------------------------------------------------
Change in plan assets:
Fair value of plan
assets at beginning
of year............. $253,442 -- $216,070 -- $204,983 --
Actual return on plan
assets.............. 46,341 -- 45,135 -- 19,594 --
Employer
contribution........ -- 1,666 -- 1,688 -- 1,765
Benefits and expenses
paid................ (8,655) (1,666) (7,763) (1,688) (8,507) (1,765)
-------- -------- -------- -------- -------- --------
Fair value of plan
assets at end
of year............. 291,128 -- 253,442 -- 216,070 --
-------- -------- -------- -------- -------- --------
Change in benefit
obligation:
Benefit obligation at
beginning of year... 192,352 31,940 170,045 26,660 165,657 30,915
Service cost.......... 6,417 278 5,402 309 5,565 307
Interest cost......... 14,077 1,779 12,458 2,182 12,042 1,865
Actuarial (gain)/
loss(1)............. 16,327 (11,510) 10,071 4,477 (4,712) (4,662)
Benefits paid......... (8,458) (1,666) (7,763) (1,688) (8,507) (1,765)
Amendments............ -- -- 2,139 -- -- --
-------- -------- -------- -------- -------- --------
Benefit obligation at
end of year......... 220,715 20,821 192,352 31,940 170,045 26,660
-------- -------- -------- -------- -------- --------
Prepaid/(accrued) cost:
Excess of plan assets
over benefit
obligation.......... 70,413 (20,821) 61,090 (31,940) 46,025 (26,660)
Unrecognized
cumulative net
(gains) losses...... (40,246) 595 (23,630) 5,346 (6,848) 1,155
Unrecognized prior
service cost........ 1,539 (1,973) 1,716 (2,364) (246) (2,756)
Unrecognized net
liability (asset) at
date of initial
application......... (7,196) -- (9,595) -- (11,993) --
-------- -------- -------- -------- -------- --------
Prepaid (accrued)
cost................ $ 24,510 $(22,199) $ 29,581 $(28,958) $ 26,938 $(28,261)
======== ======== ======== ======== ======== ========
Discount rate........... 6.75% 6.75% 7.0% 7.0% 7.5% 7.5%
Rate of increase
in salary............. 6%(3) 6%(3) 4.5% 4.5% 4.5% 4.5%
Health care cost
trend rate............ N/A 9.0% N/A 11.3% N/A 11.9%
Expected rate of return
on plan assets........ 9.0% N/A 9.0% N/A 9.0% N/A
</TABLE>
- --------------------------------------------------------------------------------
(1) Pension plan expense includes a charge of $7.3 million arising from the
actuarial recalculation of certain benefit obligations. Health & Life other
net amortization and deferrals for the year ended December 31, 1998 includes
a $7.3 million gain reflecting an actuarial gain arising from a change in
actuarial assumptions with regard to future retiree medical claims
(2) The pension expense (credit) and postretirement benefit expense are
determined using the assumptions as of the beginning of the year. The
benefit obligations and the funded status are determined using the
assumptions as of the end of the year.
(3) The rate of increase in salary is based on current experience and assumes a
continuation of the Corporation's national expansion and a lower average age
of employees.
69
<PAGE> 34
The assumed rate of future increases in per capita cost of health care benefits
(the health care cost trend rate) is 9.0% in 1998, decreasing gradually to 5.5%
in the year 2005. A one percentage point change in the assumed health care cost
trend rates would have the following effects:
<TABLE>
<CAPTION>
1% 1%
(Dollars in Thousands) Increase Decrease
- --------------------------------------------------------
<S> <C> <C>
1998:
Effect on total of service and
interest cost components $ 26 $ (26)
Effect on postretirement benefit
obligation $317 $(333)
1997:
Effect on total of service and
interest cost components $ 80 $ (80)
Effect on postretirement benefit
obligation $950 $(998)
1996:
Effect on total of service and
interest cost components $ 71 $ (71)
Effect on postretirement benefit
obligation $809 $(850)
</TABLE>
In addition to the pension plan, the Corporation also maintains an unfunded,
non-trusteed, non-contributory, non-qualified retirement plan ("BEP") for
participants whose retirement benefits under the qualified plan exceed Federal
tax law limits. As of January 1, 1997, the Corporation amended this
non-qualified plan to change the Plan from a "defined benefit" to a "defined
contribution" type of plan. The Corporation's accrued liability for the BEP is
$11.5 million, $9.3 million and $7.7 million for the three-year period ended
December 31, 1998.
- --------------------------------------------------------------------------------
20. PARENT COMPANY ONLY AND REGULATORY MATTERS
Condensed statements of income, condition and cash flows for the Parent follow:
U. S. TRUST CORPORATION (PARENT COMPANY ONLY)
STATEMENT OF INCOME
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Years Ended December 31,
-------------------------------------
(Dollars in Thousands) 1998 1997 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Income:
Equity in Net Income of Subsidiaries:
Banks............................................. $71,525 $56,254 $42,838
Non-Bank.......................................... (206) (212) 766
Interest Revenue..................................... 1,066 1,433 1,245
Other Income......................................... 138 130 --
------- ------- -------
Total Income........................................... 72,523 57,605 44,849
------- ------- -------
Expenses:
Interest Expense..................................... 4,983 4,705 1,745
Professional Fees.................................... 7,450 367 315
Other Operating Expense.............................. 6,753 4,832 3,458
------- ------- -------
Total Expenses......................................... 19,186 9,904 5,518
------- ------- -------
Income Before Income Taxes............................. 53,337 47,701 39,331
Income Taxes (Benefits)................................ (8,330) (3,331) (1,573)
------- ------- -------
Net Income............................................. $61,667 $51,032 $40,904
======= ======= =======
</TABLE>
70
<PAGE> 35
- --------------------------------------------------------------------------------
U. S. TRUST CORPORATION (PARENT COMPANY ONLY)
STATEMENT OF CONDITION
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
December 31,
------------------------
(Dollars in Thousands) 1998 1997
- ----------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Equity Investments in Subsidiaries:
Banks..................................................... $306,079 $269,670
Non-Bank.................................................. 734 4,468
-------- --------
Total Equity Investments in Subsidiaries.................... 306,813 274,138
Short-Term Investments...................................... 25,503 8,001
Securities.................................................. 1,042 19,199
Other Assets(1)............................................. 100,335 82,327
-------- --------
Total Assets................................................ $433,693 $383,665
======== ========
LIABILITIES
Short-Term Credit Facilities................................ $ 20,000 $ --
Other Liabilities........................................... 113,738 93,718
Long-Term Debt(2)........................................... 55,320 58,801
-------- --------
Total Liabilities........................................... 189,058 152,519
-------- --------
TOTAL STOCKHOLDERS' EQUITY.................................. 244,635 231,146
-------- --------
Total Liabilities and Stockholders' Equity.................. $433,693 $383,665
======== ========
</TABLE>
- --------------------------------------------------------------------------------
(1) Includes $5,000 of cash and cash equivalents at December 31, 1997.
(2) Includes the 8.414% Junior Subordinated Debt issued to U.S. Trust Capital A
at December 31, 1998 and December 31, 1997. Refer to Notes to the
Consolidated Financial Statements No. 10.
71
<PAGE> 36
U. S. TRUST CORPORATION (PARENT COMPANY ONLY)
STATEMENT OF CASH FLOWS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Years Ended December 31,
----------------------------------------
(Dollars In Thousands) 1998 1997 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income........................................ $ 61,667 $ 51,032 $ 40,904
Adjustments to Reconcile Net Income to Net Cash
Provided By Operating Activities:
Equity in Net (Income) of Subsidiaries.......... (71,319) (56,042) (43,604)
Dividends Received from Subsidiaries............ 51,000 53,000 30,500
Deferred Income Taxes........................... (739) (849) (3,576)
Net Change in Other Assets...................... (14,571) (20,025) (7,638)
Net Change in Other Liabilities................. 20,661 12,240 7,829
Other, Net...................................... 1,735 1,345 143
-------- -------- --------
Net Cash Provided by Operating Activities......... 48,434 40,701 24,558
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in Subsidiaries....................... (240) (8,000) (2,000)
Net Change in Short-Term Investments.............. (17,502) 2,729 (10,730)
Securities:
Proceeds from Sales............................. 18,157 -- 5,310
Purchases....................................... -- (17,539) --
Principal Payment from ESOP....................... 3,482 3,214 2,966
Other, Net........................................ 525 (1,547) --
-------- -------- --------
Net Cash Provided by (Used in) Investing
Activities...................................... 4,422 (21,143) (4,454)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net Change in Short-Term Credit Facilities........ 20,000 (17,000) (3,000)
Issuance of Long-Term Debt........................ -- 51,547 --
Repayment of Long-Term Debt....................... (3,482) (3,214) (2,966)
Issuance of Common Stock.......................... 1,767 755 42
Purchases of Treasury Stock....................... (58,173) (40,492) (4,728)
Dividends Paid.................................... (12,973) (11,149) (9,768)
-------- -------- --------
Net Cash (Used in) Financing Activities........... (52,861) (19,553) (20,420)
-------- -------- --------
Net Change in Cash and Cash Equivalents........... (5) 5 (316)
Cash and Cash Equivalents at Beginning of Year.... 5 -- 316
-------- -------- --------
Cash and Cash Equivalents at End of Year.......... $ -- $ 5 $ --
======== ======== ========
Income Taxes Paid................................. $ 39,818 $ 30,289 $ 16,281
Interest Expense Paid............................. 5,157 3,173 2,223
</TABLE>
72
<PAGE> 37
The Parent's banking subsidiaries are subject to limitations on the amount of
dividends they can pay to the Parent without prior approval of the bank
regulatory authorities. As of January 1, 1999, the Parent's banking subsidiaries
can declare, in aggregate, dividends of approximately $46.4 million without
prior regulatory approval.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of the Parent can finance or otherwise transfer funds
to the Parent or its nonbanking subsidiaries. These "covered transactions" are
limited to 20% of all bank subsidiary's regulatory capital and surplus and
covered transactions with any one such affiliate are limited to 10% of a bank
subsidiary's regulatory capital and surplus. Covered transactions include, among
other things, loans and extensions of credit to, purchases of assets from, and
guarantees, acceptances, and letters of credit issued on behalf of, an
affiliate. Such covered transactions must be collateralized by qualifying
collateral as defined by applicable law.
The Federal Reserve Board, the Corporation's primary federal regulator,
establishes regulatory capital requirements. Failure to meet minimum capital
requirements can initiate certain mandatory and discretionary actions by the
Federal Reserve Board that, if undertaken, could have a direct material effect
on the Corporation's financial statements. Under capital adequacy guidelines set
by the Federal Reserve Board, banks and bank holding companies must meet
specific capital guidelines that involve quantitative measures of assets,
liabilities and certain off-balance sheet items as calculated under regulatory
accounting practices. Capital requirements and classifications are also subject
to qualitative judgments by the Federal Reserve Board about components, risk
weightings and other factors. The capital of the Corporation and its
subsidiaries exceeded minimum requirements at December 31, 1998.
The following table sets forth the Corporation's and Trust Company's
regulatory capital and ratios as of December 31, 1998 and 1997.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Actual as of Actual as of
December 31, December 31,
1998 1997
------------------- -------------------
(Dollars in Thousands) Amount Rate(a) Amount Rate(a)
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Tier 1 capital:
Corporation.................................... $235,835 12.0% $252,414 14.1%
Trust Company.................................. 158,806 9.7% 144,881 9.4%
Total capital:
Corporation.................................... 255,249 13.0% 270,708 15.1%
Trust Company.................................. 176,005 10.7% 161,083 10.4%
Leverage:
Corporation.................................... 235,835 6.2% 252,414 7.3%
Trust Company.................................. 158,806 5.1% 144,881 5.3%
</TABLE>
- --------------------------------------------------------------------------------
(a) Minimum tier 1 capital, total capital and tier 1 leverage ratios are 4%, 8%
and 3%-5%, respectively, for bank holding companies and banks.
Under the prompt corrective action provisions of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA"), five capital categories were
established for banks. Pursuant to that statute, the federal bank regulatory
agencies have specifically defined these categories by determining that a bank
is well capitalized if it maintains a tier 1 capital ratio of at least 6%, a
total capital ratio of at least 10% and a leverage ratio of at least 5%.
The Federal Reserve Board has also adopted these same thresholds for the
tier 1 capital ratio and total capital ratio in defining a well capitalized bank
holding company. The well capitalized threshold for the leverage ratio may be
set at 3% to 5%, depending on other regulatory criteria.
Based on their respective regulatory capital ratios at December 31, 1998
and December 31, 1997, the Corporation and its subsidiaries are well
capitalized. There are no conditions or events that management believes have
changed the Corporation's and subsidiaries well-capitalized status.
73
<PAGE> 38
21. QUARTERLY CONDENSED CONSOLIDATED STATEMENT OF INCOME (UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997
------------------------------------- -------------------------------------
(Dollars in Thousands, Fourth Third Second First Fourth Third Second First
Except Per Share Amounts) Quarter Quarter Quarter Quarter Quarter Quarter Quarter Quarter
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Fee revenue..................... $88,814 $88,892 $83,293 $78,620 $75,900 $71,182 $67,913 $66,696
Net interest revenue............ 27,282 24,690 24,704 25,354 24,343 22,858 22,167 21,757
------- ------- ------- ------- ------- ------- ------- -------
Total revenue................... 116,096 113,582 107,997 103,974 100,243 94,040 90,080 88,453
Operating expense............... 90,199 87,545 82,927 79,884 77,924 72,634 69,689 68,910
------- ------- ------- ------- ------- ------- ------- -------
Income before income taxes...... 25,897 26,037 25,070 24,090 22,319 21,406 20,391 19,543
Income taxes.................... 10,100 10,155 9,777 9,395 8,704 8,349 7,952 7,622
------- ------- ------- ------- ------- ------- ------- -------
Net income...................... $15,797 $15,882 $15,293 $14,695 $13,615 $13,057 $12,439 $11,921
======= ======= ======= ======= ======= ======= ======= =======
Earnings per share:
Basic earnings per share...... $ 0.85 $ 0.85 $ 0.81 $ 0.78 $ 0.71 $ 0.68 $ 0.64 $ 0.61
======= ======= ======= ======= ======= ======= ======= =======
Diluted earnings per share.... $ 0.76 $ 0.76 $ 0.73 $ 0.70 $ 0.64 $ 0.61 $ 0.58 $ 0.55
======= ======= ======= ======= ======= ======= ======= =======
Stock price high................ $ 76.75 $ 84.13 $ 77.50 $ 66.50 $ 65.75 $ 57.25 $ 49.13 $ 47.88
Stock price low................. 46.75 58.88 64.00 56.63 52.50 44.75 39.25 37.63
Cash dividends declared......... 0.18 0.18 0.18 0.18 0.15 0.15 0.15 0.15
</TABLE>
- --------------------------------------------------------------------------------
The common shares of the Corporation are traded in the Nasdaq national market.
The market prices shown above are based on Nasdaq national market prices. As of
January 1, 1999, there were approximately 1,880 record holders of the
Corporation's common shares.
74
<PAGE> 39
REPORT OF INDEPENDENT ACCOUNTANTS
January 20, 1999
To the Board of Directors and Stockholders of U.S. Trust Corporation:
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of income and retained earnings and of cash
flows present fairly, in all material respects, the financial position of U.S.
Trust Corporation and its subsidiaries at December 31, 1998 and 1997, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1998, in conformity with generally accepted
accounting principles. These financial statements are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
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, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
[PricewaterhouseCoopers LLP]
PricewaterhouseCoopers LLP
75
<PAGE> 40
FINANCIAL AND OTHER DATA SUPPLEMENT
- --------------------------------------------------------------------------------
SELECTED FINANCIAL DATA
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Years Ended December 31,
(Dollars in Millions, ---------------------------------------------------------
Except Per Share Amounts)(1)(2)(3) 1998 1997 1996 1995(4) 1994(4)
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Fee revenue........................ $339.6 $281.7 $ 244.2 $215.3 $197.5
Fee revenue -- processing
business(4)...................... -- -- -- 66.1 102.7
Net interest revenue and other
income........................... 102.0 91.1 78.5 103.4 118.5
------ ------ ------- ------ ------
Total revenue...................... 441.6 372.8 322.7 384.8 418.7
Operating expenses................. 340.6 289.2 253.5 322.6 334.2
Restructuring costs(4)............. -- -- -- 155.6 50.2
------ ------ ------- ------ ------
Income (loss)
before income taxes.............. 101.1 83.7 69.3 (93.4) 34.4
Income taxes....................... 39.4 32.6 28.4 (42.9) 13.4
------ ------ ------- ------ ------
Net income (loss).................. $ 61.7 $ 51.0 $ 40.9 $(50.5) $ 21.0
====== ====== ======= ====== ======
Basic earnings (loss) per share.... $ 3.29 $ 2.64 $ 2.09 $(2.62) $ 1.12
Diluted earnings (loss) per
share............................ 2.96 2.39 1.95 (2.62) 1.06
Cash dividends declared
per share........................ 0.72 0.60 0.50 0.63 1.00
Dividend payout ratio.............. 24.32% 25.10% 25.64% (23.85)% 94.34%
- ------------------------------------------------------------------------------------------------
At December 31:
Assets under management(3)
Investment management............ $ 61.3 $ 47.3 $ 38.0 $ 33.5 $ 26.0(5)
Special fiduciary................ 13.7 13.9 15.3 13.9 5.1
Assets under administration(3)..... 326.5 268.7 232.3 203.8 167.8(5)
Total assets....................... 4,143 3,815 3,477 2,573 3,223
Trust preferred capital securities
and long-term debt............... 67.8 72.3 26.5 29.4 60.9
Return on average stockholders'
equity........................... 26.20% 22.75% 20.99% (23.10)% 9.24%
Return on average total assets..... 1.68% 1.49% 1.42% (1.52)% 0.53%
Average stockholders' equity as a
percentage of average total
assets........................... 6.42% 6.54% 6.76% 6.60% 5.69%
</TABLE>
- --------------------------------------------------------------------------------
(1)Columns may not tally due to rounding.
(2)All earnings per share and common stock disclosures in this report have been
adjusted for a two-for-one stock split effected in the form of a stock
dividend distributed on February 21, 1997.
(3)Assets under Management and Assets under Administration are expressed in
billions.
(4)The years ended December 31, 1995 and December 31, 1994 include revenues
generated by certain businesses sold on September 1, 1995, to The Chase
Manhattan Corporation. These periods also include $86.9 million (after-taxes)
and $27.9 million (after-taxes) of restructuring charges for the years ended
December 31, 1995 and December 31, 1994, respectively.
(5)Excludes $1.9 billion of Investment Management assets under management and
$223.4 billion of assets under administration as of December 31, 1994 due to
the sale on September 1, 1995 of certain businesses to The Chase Manhattan
Corporation.
76
<PAGE> 41
- -------------------------------------------------------
ANALYSIS OF CHANGE IN NET INTEREST REVENUE FOR THE YEARS ENDED DECEMBER 31,
The following table, on a taxable equivalent basis, is an analysis of the
year-to-year changes in the categories of interest revenue and interest expense
resulting from changes in volume and rate.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 Compared to 1997 1997 Compared to 1996
Increase (Decrease) Due to Increase (Decrease) Due to
Change in: Change in:
--------------------------- ---------------------------
Average Average Average Average
(Dollars in Thousands) Balance Rate Total Balance Rate Total
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interest earning assets:
Short-term investments...................... $6,023 $ (415) $ 5,608 $ 1,005 $ 155 $ 1,160
Loans(1)(2)................................. 18,074 (2,014) 16,060 16,622 (648) 15,974
Securities(3):
U.S. government obligations............... (7,285) 615 (6,670) 1,241 1,301 2,542
Federal agency obligations................ (1,703) (1,702) (3,405) 16,709 1,483 18,192
State and municipal obligations........... 765 (1,040) (275) 1,560 (462) 1,098
Collateralized mortgage obligations....... (431) 18 (413) (903) 86 (817)
Other securities.......................... 404 382 786 211 (157) 54
------- ------- ------- ------- ------ -------
Total securities............................ (8,250) (1,727) (9,977) 18,818 2,251 21,069
------- ------- ------- ------- ------ -------
Total interest earning assets............... 15,847 (4,156) 11,691 36,445 1,758 38,203
------- ------- ------- ------- ------ -------
Interest bearing sources of funds:
Interest bearing deposits................... 13,371 (5,148) 8,223 16,129 943 17,072
Short-term credit facilities................ (6,195) (764) (6,959) 4,011 329 4,340
Trust preferred capital securities.......... 312 65 377 3,859 -- 3,859
Long-term debt.............................. (353) (33) (386) (233) (37) (270)
------- ------- ------- ------- ------ -------
Total sources on which interest is paid..... 7,135 (5,880) 1,255 23,766 1,235 25,001
------- ------- ------- ------- ------ -------
Change in net interest income- taxable
equivalent basis.......................... $8,712 $1,724 $10,436 $12,679 $ 523 $13,202
====== ====== = ===== ======
Tax equivalent adjustment................... 531 (413)
------- -------
Change in net interest income............... $10,967 $12,789
======= =======
</TABLE>
- --------------------------------------------------------------------------------
Changes that are not due solely to volume or rate have been allocated ratably to
their respective categories.
(1)The average principal balances of non-accrual and reduced rate loans are
included in the above figures.
(2)Loans include the Loan to ESOP, which had an average balance of $4.0 million
in 1998, $7.5 million in 1997 and $10.7 million in 1996.
(3)The average balance and average rate for securities available for sale has
been calculated using their amortized cost.
77
<PAGE> 42
THREE-YEAR NET INTEREST REVENUE (TAX EQUIVALENT BASIS) AND AVERAGE BALANCES
FOR THE YEARS ENDED DECEMBER 31,
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998
---------------------------------
Average Average
(Dollars in Thousands) Balance Interest Rate
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Short-term investments...................................... $ 240,402 $ 12,750 5.30%
Securities(1)(2)............................................ 1,043,323 65,401 6.27
Loans(3)(4)................................................. 1,973,027 149,493 7.58
---------- --------
Total interest earning assets............................... 3,256,752 227,644 6.99
---------- --------
Interest bearing deposits................................... 2,350,945 107,846 4.59
Short-term credit facilities................................ 168,156 8,755 5.21
Long-term credit facilities................................. 68,396 5,516 8.06
---------- --------
Total sources on which interest is paid..................... 2,587,497 122,117 4.72
---------- --------
Net interest revenue-taxable equivalent basis............... 105,527
Net free funds(4)........................................... $ 669,255
==========
Provision for credit losses................................. (600)
Tax equivalent adjustment(2)................................ (2,901)
Securities gain, net........................................ 4
--------
Net interest revenue........................................ $102,030
=========
Net yield on interest earning assets........................ 3.24
</TABLE>
- --------------------------------------------------------------------------------
(1)The average balance and average rate for securities available for sale has
been calculated using their amortized cost.
(2)Yields on state and municipal obligations are stated on a taxable equivalent
basis, employing the Federal statutory income tax rate adjusted for the
effect of state and local taxes, resulting in a marginal tax rate of
approximately 47% for 1998, 1997 and 1996.
(3)The average principal balances of non-accrual and reduced rate loans are
included in the above figures.
(4)Loans and Stockholders' Equity include the Loan to ESOP, which had an average
balance of $4.0 million in 1998, $7.5 million in 1997 and $10.7 million in
1996.
78
<PAGE> 43
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1997 1996
------------------------------------- -------------------------------------
Average Average Average Average
Balance Interest Rate Balance Interest Rate
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
$ 130,418 $ 7,142 5.48% $ 112,010 $ 5,982 5.34%
1,178,346 75,378 6.40 895,964 54,309 6.06
1,737,652 133,433 7.68 1,522,246 117,459 7.72
---------- -------- ---------- --------
3,046,416 215,953 7.09 2,530,220 177,750 7.03
---------- -------- ---------- --------
2,072,750 99,623 4.81 1,736,970 82,551 4.75
286,451 15,714 5.49 213,180 11,374 5.34
69,754 5,525 7.92 26,719 1,936 7.25
---------- -------- ---------- --------
2,428,955 120,862 4.98 1,976,869 95,861 4.85
---------- -------- ---------- --------
95,091 81,889
$ 617,461 $ 553,351
========== ==========
(750) (1,000)
(3,432) (3,019)
216 642
-------- --------
$ 91,125 $ 78,512
======== ========
3.12 3.24
</TABLE>
- --------------------------------------------------------------------------------
79
<PAGE> 44
LOANS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(Dollars in Thousands) Within 1 Year 1-5 Years Over 5 Years Total
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Maturity schedule of loans at December 31, 1998:
Private banking:
Residential real estate mortgages(1)............... $ 86,801 $165,194 $1,378,505 $1,630,500
Other.............................................. 499,471 13,236 12,907 525,614
-------- -------- ---------- ----------
Total private banking loans.......................... 586,272 178,430 1,391,412 2,156,114
------------ -------- ------------ ----------
Loans to financial institutions for purchasing and
carrying securities................................ 31,972 -- -- 31,972
All other............................................ 219 449 2,053 2,721
------------ -------- ---------- ----------
Total.............................................. $618,463 $178,879 $1,393,465 $2,190,807
======== ======== ========== ==========
Interest sensitivity of loans at December 31, 1998:
Loans with predetermined interest rates.............. $150,322 $ 914,081 $1,064,403
Loans with floating or adjustable interest rates..... 28,557 479,384 507,941
-------- ------------ ----------
Total.............................................. $178,879 $1,393,465 $1,572,344
======== =========== ============
</TABLE>
- --------------------------------------------------------------------------------
(1) Maturities are based upon the contractual terms of the loans.
- --------------------------------------------------------------------------------
SUMMARY OF CREDIT LOSS EXPERIENCE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(Dollars in Thousands) 1998 1997 1996 1995 1994
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Average loans...................... $1,968,978 $1,730,134 $1,511,527 $1,354,975 $1,307,900
Allowance to average loans......... 0.99% 1.06% 1.10% 1.19% 1.12%
Allowance to nonperforming loans... 312.98% 189.26% 187.94% 121.08% 230.72%
Net (charge-offs) recoveries to
average loans.................... 0.03% 0.05% (0.03)% (0.02)% (0.05)%
Nonperforming assets to average
loans and real estate owned...... 0.34% 0.56% 0.64% 1.68% 1.38%
</TABLE>
- --------------------------------------------------------------------------------
At December 31, 1998, the loan portfolio included loans to individuals involved
in the financial services industry of approximately $619 million. Recoveries
exceeded charge-offs from loans to individuals involved in the financial
services industry in 1998 and 1997. Net charge-offs from loans to individuals
involved in the financial services industry amounted to $471,000 in 1996,
$353,000 in 1995 and $438,000 in 1994. Such net charge-offs as a percentage of
average total loans amounted to three basis points in 1996, 1995 and 1994.
80
<PAGE> 45
DEPOSITS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
(Dollars in Millions) Amount Rate Amount Rate Amount Rate
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Analysis of average daily deposits:
Non-interest bearing deposits....... $ 572 -- $ 527 -- $ 474 --
Certificates of deposits of $100,000
or more.......................... 56 5.00% 66 5.08% 102 5.55%
Money market and other savings
deposits......................... 2,295 4.58% 2,007 4.80% 1,635 4.70%
----- ----- -----
Total deposits................... $2,923 $2,600 2,211
======= ======= ======
</TABLE>
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Certificates Other
(Dollars in Millions) of Deposit Deposits
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Maturity distribution of interest bearing deposits in
amounts of $100,000 or more at December 31, 1998:
Three months or less...................................... $50 $2,210
Three through six months.................................. 6 --
Six through twelve months................................. 2 --
Over twelve months........................................ 2 --
--- ------
Total.................................................. $60 $2,210
=== ======
</TABLE>
- --------------------------------------------------------------------------------
EXECUTIVE OFFICERS OF THE REGISTRANT AS OF FEBRUARY 1, 1999
<TABLE>
<CAPTION>
Executive Officers Age Title
- ------------------------------------- --- -----------------------------------------------------------
<S> <C> <C>
H. Marshall Schwarz.................. 62 Chairman of the Board and Chief Executive Officer (since
1990)
Jeffrey S. Maurer.................... 51 President (since 1990) and Chief Operating Officer (since
1994)
Maribeth S. Rahe..................... 50 Vice Chairman (since 1997); prior thereto, Vice Chairman
(from 1995) and Senior Executive Vice President (from 1994)
of Harris Bank
Frederick B. Taylor.................. 57 Vice Chairman and Chief Investment Officer (since 1990)
John M. Deignan...................... 55 Executive Vice President (since 1991)
John L. Kirby........................ 51 Treasurer and Chief Financial Officer (since 1995); prior
thereto, Senior Vice President and Auditor (since 1992)
</TABLE>
81
<PAGE> 1
EXHIBIT 21
U.S. Trust Corporation
List of Subsidiaries
<TABLE>
<CAPTION>
State or Other Jurisdiction Office Percent
of Incorporation Owned
---------------------------------- -------
<S> <C> <C>
CTC Consulting, Inc. Oregon 100.0
Fernhill Holding, Inc. California 100.0
Wood Island Holdings, Inc. California 100.0
United States Trust Company of New York New York 100.0
Pouch Terminal Inc. New York 100.0
QINB, Inc. New Jersey 100.0
United States Trust Company International Corporation United States 100.0
United States Trust Company of New York (Grand Cayman) Ltd. Cayman Islands 100.0
United States Trust London Ltd. London, England 100.0
UST Overseas Corporation Delaware 100.0
Foreign & Colonial Asset Mangement London, England 50.0
UST Capital Corp. New York 100.0
UST Financial Services Corp. New York 100.0
US Trust Mortgage Service Company Florida 100.0
Co-op Holdings, Inc. Nevada 100.0
U.S. Trust Company of Connecticut Connecticut 100.0
U.S. Trust Company of Florida Savings Bank Florida 100.0
U.S. Trust Company of New Jersey New Jersey 100.0
UST Securities Corporation New Jersey 100.0
U.S. Trust Company National Association California 100.0
UST Fiduciary Services Ltd. Delaware 100.0
U.S.T. L.P.O. Corp. Delaware 100.0
U.S. Trust Company of Texas, N.A. Texas 100.0
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in (i) the Registration
Statement on Form S-8 of U.S. Trust Corporation (Registration No. 33-63899)
pertaining to the 1995 Stock Option Plan of U.S. Trust Corporation, (ii) the
Registration Statement on Form S-8 of U.S. Trust Corporation (Registration No.
33-62371) pertaining to the 401(k) Plan and ESOP of United States Trust Company
of New York and Affiliated Companies, (iii) the Registration Statement on Form
S-8 of U.S. Trust Corporation (Registration No. 333-68589) pertaining to the
U.S. Trust Corporation Employee Stock Purchase Plan, (iv) the Registration
Statements on Form S-3 of U.S. Trust Corporation (Registration Nos. 333-61903,
333-63683, 333-16607, 333-72125) pertaining to the resale of 711,079 shares by
certain selling shareholders, of our report dated January 20, 1999, on our
audits of the consolidated financial statements of U.S. Trust Corporation and
Subsidiaries as of December 31, 1998 and 1997 and, for each of the three years
in the period ended December 31, 1998, which report is included in the Annual
Report on Form 10-K.
PricewaterhouseCoopers LLP
New York, New York
March 10, 1999
<TABLE> <S> <C>
<ARTICLE> 9
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 108,346
<INT-BEARING-DEPOSITS> 204,263
<FED-FUNDS-SOLD> 255,000
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 1,058,088
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 2,190,807
<ALLOWANCE> 10,414
<TOTAL-ASSETS> 4,142,862
<DEPOSITS> 3,414,791
<SHORT-TERM> 140,925
<LIABILITIES-OTHER> 274,738
<LONG-TERM> 67,773
0
0
<COMMON> 19,971
<OTHER-SE> 224,664
<TOTAL-LIABILITIES-AND-EQUITY> 4,142,862
<INTEREST-LOAN> 149,493
<INTEREST-INVEST> 62,500
<INTEREST-OTHER> 12,750
<INTEREST-TOTAL> 224,743
<INTEREST-DEPOSIT> 107,846
<INTEREST-EXPENSE> 122,117
<INTEREST-INCOME-NET> 102,626
<LOAN-LOSSES> 600
<SECURITIES-GAINS> 4
<EXPENSE-OTHER> 340,555
<INCOME-PRETAX> 101,094
<INCOME-PRE-EXTRAORDINARY> 61,667
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 61,667
<EPS-PRIMARY> 3.29<F1>
<EPS-DILUTED> 2.96<F1>
<YIELD-ACTUAL> 3.24
<LOANS-NON> 6,203
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 18,294
<CHARGE-OFFS> 327
<RECOVERIES> 847
<ALLOWANCE-CLOSE> 19,414
<ALLOWANCE-DOMESTIC> 19,414
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 19,414
<FN>
<F1> Represents the Corporation's basic and diluted income per share calculated
in accordance with Statement of Financial Accounting Standards No. 128
"Earnings Per Share".
</FN>
</TABLE>
