AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
ARTICLE I EMPLOYMENT AND DUTIES........................... 1
Section 1.1 General......................................... 1
Section 1.2 Required Service................................ 2
ARTICLE II TERM OF EMPLOYMENT.............................. 3
Section 2.1 Term of Employment.............................. 3
ARTICLE III COMPENSATION AND OTHER BENEFITS................. 3
Section 3.1 Compensation and Other Benefits................. 3
Section 3.2 Salary.......................................... 3
Section 3.3 Employment Benefit Plans........................ 5
Section 3.4 Support Services................................ 5
Section 3.5 Relocation...................................... 5
Section 3.6 Travel.......................................... 6
ARTICLE IV TERMINATION OF EMPLOYMENT....................... 6
Section 4.1 Termination for Cause;Resignation Without Good
Reason.......................................... 6
Section 4.2 Termination Without Cause; Resignation for
Good Reason..................................... 7
Section 4.3 Death or Disability............................. 11
ARTICLE V SECRECY AND NONCOMPETITION...................... 11
Section 5.1 Secrecy......................................... 11
Section 5.2 Intellectual Property........................... 12
Section 5.3 Non-Compete Covenant............................ 13
Section 5.4 Injunctive Relief............................... 14
ARTICLE VI ARBITRATION..................................... 14
Section 6.1 Arbitration..................................... 14
ARTICLE VII NOTICES......................................... 16
Section 7.1 Notices......................................... 16
Section 7.2 Addresses....................................... 16
ARTICLE VIII MISCELLANEOUS................................... 17
Section 8.1 Obligation to Pay............................... 17
Section 8.2 Express Assumption.............................. 17
Section 8.3 Nonassignability by the Executive............... 18
Section 8.4 Entire Agreement; Binding Agreement............. 18
Section 8.5 Severability.................................... 18
Section 8.6 Amendment; Waiver............................... 19
Section 8.7 Governing Law................................... 19
Section 8.8 Supersedes Previous Agreements.................. 19
Section 8.9 Counterparts.................................... 20
Section 8.10 Headings........................................ 20
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of January 1,
1997 (the "Effective Date"), by and between Winston Resources, Inc., a Delaware
corporation (the "Corporation"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual residing at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Executive").
W I T N E S S E T H:
WHEREAS, the Corporation and the Executive had previously entered
into an Employment Agreement, dated as of May 1, 1987, as amended by Amendment
dated as of March 2, 1992 (as amended, the "Prior Agreement");
WHEREAS, the Corporation and the Executive now desire to amend and
restate the Prior Agreement and the parties further intend that this Amended and
Restated Agreement shall supersede the Prior Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
SECTION 1.1 GENERAL.
The Corporation hereby employs the Executive and the Executive
agrees, upon the terms and conditions herein set forth, to serve as Chairman of
the Board of Directors and Chief Executive Officer of the Corporation with the
titles of Chairman of the Board and President. In such capacity, the Executive
shall report directly to the Board of Directors of the Company (the "Board") and
shall perform such duties in respect of such positions as may be delineated in
the By-Laws of the Corporation, and such other duties, commensurate with the
Executive's titles and positions of Chairman of the Board and Chief Executive
Officer of the Corporation, as may be assigned to the Executive from time to
time by the Board. The Executive shall perform for the Corporation and any of
its subsidiaries such duties as are customarily performed by a corporate officer
having principal executive responsibility for a publicly-held corporation. If
elected or appointed, the Executive shall also serve as a director or officer of
any of the Corporation's subsidiaries or affiliated companies without further
compensation. As used in this Agreement, "Chief Executive Officer" shall mean
the most senior position in the Corporation, irrespective of title.
SECTION 1.2 REQUIRED SERVICE. During the Term hereof, the Executive
shall, unless prevented by ill health, devote his full-time working hours to his
duties hereunder. The Executive shall be responsible for setting his own hours
and performing his services at the offices of the Corporation or at such other
locations as designated by him.
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ARTICLE II
TERM OF EMPLOYMENT
SECTION 2.1 TERM OF EMPLOYMENT. The term of employment
hereunder shall commence on the Effective Date, and end on August 14, 2002
(the "Term"), unless sooner terminated as provided herein.
ARTICLE III
COMPENSATION AND OTHER BENEFITS
SECTION 3.1 COMPENSATION AND OTHER BENEFITS. Subject to the
provisions of this Agreement, the Corporation shall pay and provide the
compensation and other benefits described in this Article III to the Executive
during the Term as compensation for services rendered hereunder.
SECTION 3.2 SALARY.
(a) (i) During the fiscal year of the Corporation ending December
31, 1997, the Corporation shall pay the Executive an initial annual salary
("Base Salary") in the amount of $445,638. The annual Base Salary during each
subsequent year of the Term after such fiscal year shall be equal to the initial
Base Salary increased by the greater of (a) three (3%) percent per annum,
compounded or (b) an amount which is determined by multiplying said initial Base
Salary amount by the percentage increase, if any, of the Consumer Price Index
for all Urban Workers (New York - Northern New Jersey) (1967=100), issued by
the
▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Department of Labor (the
"Index") for such subsequent year over the Index for the fiscal year ended
December 31, 1996. Base Salary shall be payable in equal, or as nearly equal as
may be practicable installments not less frequently than bi-weekly. The
Corporation shall be entitled to deduct or withhold all taxes and charges which
the Corporation may be required to deduct or withhold therefrom.
(ii) In addition to the Base Salary provided in Section 3.2(a)(i)
above, the Executive shall be paid an amount of incentive compensation (the
"Incentive Compensation") with respect to each fiscal year of the Corporation
during the Term in an amount which equals the aggregate of the following
percentages of Pre-Tax Income (as hereinafter defined): (A) 6% of Pre-Tax Income
up to $1,000,000; (B) 10% of Pre-Tax Income over $1,000,000 up to $2,000,000;
(C) 20% of Pre-Tax Income over $2,000,000 up to $3,200,000; and (D) 6% of
Pre-Tax Income over $3,200,000, without limitation. For purposes of this
paragraph, "Pre-Tax Income" shall mean the consolidated income before income
taxes and extraordinary charges of the Corporation and its subsidiaries in any
fiscal year (computed without giving effect to the accrual or payment of the
incentive amount described in this paragraph. For purposes of this paragraph,
Pre-Tax Income shall be computed in accordance with generally accepted
accounting principles on a basis consistent with the audited consolidated
financial statements of the Corporation and its subsidiaries for such fiscal
year as distributed to the Corporation's stockholders and, except for the
exclusion of the incentive amount described in this paragraph, after deduction
of all proper operating costs and expenses, including the Base Salary paid to
the Executive during such fiscal year pursuant to this Section 3.2 and any other
compensation, benefits or bonuses paid to the Executive for, or accrued in his
behalf
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with respect to, such fiscal year. The Incentive Compensation determined
in accordance with this paragraph shall be computed and paid to the Executive
not later than the 90th day following the end of each fiscal year in a lump sum
or, at the election of the Executive, in two (2) or more installments on such
dates, not later than the end of the year of determination, and in such amounts
as the Executive may reasonably request.
SECTION 3.3 EMPLOYMENT BENEFIT PLANS. At all times during the
Term, the Executive shall be provided the opportunity to participate in any
other bonus, stock option, incentive compensation, deferred compensation, group
insurance plan, or other plan and program, including pension and welfare plans,
programs and arrangements (the "Plans") that are generally made available to
executives of the Corporation, or as may be deemed appropriate by the
Compensation Committee of the Board. The Executive shall also be entitled to
receive any other benefits for which he is eligible and which the Corporation
may provide for him or for its employees generally.
SECTION 3.4 SUPPORT SERVICES. At all times during the Term, the
Corporation shall provide the Executive with the use of an automobile of his
selection, office space and support services, including secretarial services,
equivalent to those afforded to the Executive immediately prior to the Effective
Date.
SECTION 3.5 RELOCATION. The Corporation shall not, without the
Executive's consent, relocate the Executive's principal place of business to a
location beyond twenty (20) miles from the location of the Executive's principal
place of business immediately prior to the Effective Date.
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SECTION 3.6 TRAVEL. The Corporation shall not, without the
Executive's consent, require the Executive to travel on the Corporation's
business to an extent materially inconsistent with the Corporation's business
travel requirements as applied to the Executive immediately prior to the
Effective Date. The Corporation shall pay or reimburse the Executive for all
reasonable travel and other expenses incurred by the Executive in connection
with the performance of his services under this Agreement, upon presentation of
expense statements, vouchers, and other supporting documentation in such form
and containing such information as the Corporation may from time to time
reasonably request.
ARTICLE 4.
TERMINATION OF EMPLOYMENT
SECTION 4.1 TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD
REASON.
(A) If, prior to the expiration of the Term, the Executive's
employment is terminated by the Corporation for Cause, as defined in Section
4.1(b) hereof, or if the Executive resigns from his employment hereunder without
Good Reason, as defined in Section 4.2(c) hereof, the Executive shall not be
eligible to receive Base Salary under Section 3.2(a) hereof, or to participate
in any Plans under Section 3.4, hereof with respect to future periods after the
date of such termination or resignation, except for the right to receive
benefits which have become vested under any Plan in accordance with the terms of
such Plan. In addition, the Executive shall not be eligible to receive any
Incentive Compensation described in Section 3.2(b) hereof for the Corporation's
fiscal year during which the date of termination or resignation occurs and any
later years.
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(B) Termination for "Cause" shall mean termination of the
Executive's employment with the Corporation by the Board because of (i)
the commission by the Executive of an act of fraud or embezzlement against
the Corporation or any of its subsidiaries, or (2) a felony conviction of
the Executive.
(C) The date of termination of employment by the Corporation
under this Section 4.1 shall be the date specified in a written notice of
termination (which date shall be no earlier than the date of furnishing such
notice), or if no such date is specified therein, the date of receipt by the
Executive of such written notice of termination. The date of resignation under
this Section 4.1 shall be two (2) weeks after receipt by the Corporation of
written notice of resignation, or if no such notice is provided, the date the
Executive ceases to perform his duties hereunder.
SECTION 4.2 TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD
REASON.
(A) Subject to the provisions of Section 4.2(e) hereof, if,
prior to the expiration of the Term, the Executive's employment is terminated by
the Corporation without Cause, and other than as a result of his death or
Disability, or if the Executive resigns from his employment for Good Reason, the
Executive shall be entitled to receive as severance benefits (the "Severance
Benefits") the following: (I) his Base Salary at the annual rate then in
effect immediately prior to such termination or resignation or, as the case may
be, his compensation under Section 3.2(b) through the effective date of such
termination or resignation; (II) the Incentive Compensation the Executive would
have earned, prorated to the effective date of such termination or resignation;
(III) continued coverage for the Term under the Corporation's health and
insurance plans applicable to the Executive immediately prior to
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such termination or resignation or, if any such plan does not permit continued
coverage of the Executive, the Corporation shall arrange to provide a benefit
substantially similar to and no less favorable than the benefits he was entitled
to under such plan; and (IV) a lump sum severance payment equal to 2.99 times
the Executive's "Base Amount," as such term is defined in Section 280G of the
Internal Revenue Code (the "Code") (subject to any applicable payroll or other
taxes and charges required to be withheld computed at the rate for supplemental
payments) provided that in no event shall "Total Payments" (as hereinafter
defined) exceed 2.99 times the Executive's Base Amount. The Executive's Base
Amount shall be determined in accordance with temporary or final regulations
promulgated under section 280G of the Code then in effect, if any. In the
absence of such regulations, if the Executive were not employed by the
Corporation (or the corporation or partnership affiliated with the Corporation
(an "Affiliate") within the meaning of Section 1504 of the Code or a predecessor
of the Corporation) during the entire five calendar years (the "Base Period")
preceding the calendar year in which a Change in Control of the Corporation
occurred, the Executive's average annual compensation for the purposes of such
determination shall be the lesser of (1) the average of the Executive's annual
compensation for the complete calendar years during the Base Period during which
the Executive was so employed or (2) the average of the Executive's annual
compensation for both complete and partial calendar years during the Base Period
during which the Executive was so employed, determined by any compensation
(other than nonrecurring items) includable in the Executive's gross income for
any partial calendar year or (3) the annual average of the Executive's total
compensation for the Base Period during which the Executive was so employed,
determined by dividing such
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total compensation by the number of whole and
fractional years included in the Base Period. Compensation payable to the
Executive by the Corporation or any Affiliate or predecessor of the Corporation
shall include every type and form of compensation includable in the Executive's
gross income in respect of the Executive's employment by the Corporation or any
Affiliate or predecessor of the Corporation, including compensation income
recognized as a result of the Executive's exercise of stock options or sale of
the stocks acquired, except to the extent otherwise provided in temporary or
final regulations promulgated under Section 280G of the Code. For purposes of
this paragraph only a "change in control of the Corporation" shall have the
meaning set forth in Section 280G of the Code and any temporary or final
regulations promulgated thereunder, subject to the limitation stated in
Subsection 5(c) below.
(B) The date of termination of employment by the Corporation
under this Section 4.2 shall be the date specified in a written notice of
termination to the Executive (which date shall be no earlier than the date of
furnishing such notice) or, if no such date is specified therein, the date on
which such notice is given to the Executive. The date of resignation under this
Section 4.2 shall be two weeks after receipt by the Corporation of the written
notice of resignation.
(C) Resignation for "Good Reason" shall mean the Executive's
voluntary termination of employment with the Corporation because of (I) a
reduction, without the Executive's written consent, in the Executive's current
base or aggregate compensation, unless such reduction is generally applicable to
all executives of the Corporation, (II) a reduction without the
Executive's consent, in the Executive's then current responsibilities as
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set forth in Section 1.1 hereof, (III) an election by the Executive to resign
within two years following a Change in Control of the Corporation (as defined in
Section 4.2(f)), or (IV) such other events of hardship as the Board may
determine on a case-by-case basis.
(D) For purposes of this Agreement, "Disability" shall mean
that, as a result of the Executive's incapacity due to physical or mental
illness, the Executive has been unable to substantially perform his normal
duties with the Corporation for six (6) consecutive months and within thirty
(30) days after Notice of Termination is given to the Executive, he has not been
able to resume substantial performance of his normal duties. Any question as to
the existence of Disability shall be determined by a qualified independent
physician selected by the Executive (or, if he is unable to make such selection,
such selection shall be made by any adult member of the Executive's family) and
approved by the Corporation. The written determination of such physician shall
be final and conclusive for purposes of this Amendment.
(E) In the event that the Severance Benefits would not be
deductible in whole or in part in the calculation of Federal income tax owed by
the Corporation or any of its affiliates, or any other person or entity making
such payment or providing such benefit by reason of Section 280G of the Code,
the Severance Benefits shall be reduced until no portion of the Severance
Benefits is not deductible by reason of Section 280G of the Code.
(F) For purposes of Section 4.2(c), "Change in Control" shall
mean (i) the acquisition by a Third Party (as hereinafter defined) of
beneficial ownership of more than fifty percent (50%) of the issued and
outstanding voting securities or, by proxy or otherwise, fifty percent (50%) of
the combined voting power of the Corporation, or (ii) the acquisition
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of all or substantially all of the assets of the Corporation by a Third Party by
purchase, merger, consolidation or other form of transaction. For purposes of
this Section 4.2(f), "Third Party" shall mean any person or group other than the
Corporation and its affiliates; "person" and "beneficial ownership" shall have
the meanings assigned to such terms under Section 13(d) of the Securities
Exchange Act of 1934, as amended; and an "affiliate" of any first person shall
mean a second person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first person.
SECTION 4.3 DEATH OR DISABILITY. If the Executive dies or
suffers Disability prior to the expiration of the Term, for a period of twelve
months thereafter, his Base Salary and Incentive Compensation (determined as the
Incentive Compensation he would have earned had his employment continued) under
Section 3.2(a) and compensation under Section 3.2(b) will be prorated for said
period and paid to him or his beneficiary or estate.
ARTICLE V
SECRECY
SECTION 5.1 SECRECY. The Executive recognizes that the services to
be performed by him hereunder are special, unique and extraordinary in that, by
reason of his employment hereunder and his past employment with the Corporation,
he may acquire or has acquired confidential information and trade secrets
concerning the operations of the Corporation, or its subsidiaries or affiliates,
the use or disclosure of which could cause the Corporation
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substantial loss and
damages which could not be readily calculated, and for which no remedy at law
would be adequate. Accordingly, the Executive covenants and agrees with the
Corporation that he will not at any time, except in performance of the
Executive's obligations to the Corporation hereunder, or with the prior written
consent of the Board, directly or indirectly, disclose any secret or
confidential information that he may learn or has learned by reason of his
association with the Corporation, or any predecessors to the business of the
Corporation, or use any such information to the detriment of the Corporation or
any of its subsidiaries or affiliates. The term "confidential information"
includes, without limitation, information not previously disclosed to the public
or to the trade by the Corporation's management with respect to the
Corporation's or any of its subsidiaries' or affiliates', business plans,
prospects and opportunities, the identity of clients, suppliers or customers,
information regarding operational strengths and weaknesses, trade secrets,
know-how and other intellectual property, systems, procedures, manuals,
confidential reports, price lists, marketing plans or strategies, and financial
information. The Executive understands and agrees that the rights and
obligations set forth in this Section 5.1 are perpetual and, in any case, shall
extend beyond the Executive's employment hereunder.
SECTION 5.2 INTELLECTUAL PROPERTY. The Executive confirms that all
confidential information is and shall remain the exclusive property of the
Corporation. All business records, papers and documents kept or made by the
Executive relating to the business of the Corporation shall be and remain the
property of the Corporation. Upon the termination of his employment with the
Corporation, or upon the request of the Corporation at any time, the Executive
shall promptly deliver to the Corporation, and shall not, without the consent of
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the Board (which consent shall not be unreasonably withheld), retain copies of,
any written materials not previously made available to the public, records and
documents made by the Executive or coming into his possession concerning the
business or affairs of the Corporation. The Executive may retain records
relating exclusively to the terms and conditions of his employment relationship
with the Corporation. The Executive understands and agrees that the rights and
obligations set forth in this Section 5.2 are perpetual and, in any case, shall
extend beyond the Executive's employment hereunder.
SECTION 5.3 NON-COMPETE COVENANT. During the Term of his employment
by the Corporation, and, in the event that he resigns or departs from its employ
without the approval of its Board of Directors or is discharged for "cause" (as
defined in Section 4.1(b) hereof), the Executive shall not engage, directly or
indirectly, as proprietor, partner, shareholder, director, officer, employee,
agent, consultant, or in any other capacity or manner whatsoever, in any
business activity competitive with the business of the Corporation and any
subsidiary of the Corporation, as constituted during his employment and on the
date of such resignation, departure or discharge (i) in the market area of the
Corporation and any such subsidiary as constituted on the date of his
resignation, departure or discharge for a period of three (3) years after such
date, and (ii) outside of such market area for a period of two (2) years after
such date; provided, that nothing contained in this Section 5.3 shall prevent
the Executive from purchasing or causing or permitting to be purchased for his
direct or indirect benefit securities of any corporation whose securities are
regularly traded on any national securities exchange or in the over-the-counter
market so long as such purchases shall not result in the direct or indirect
beneficial ownership by the
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Executive, at any time while the foregoing
restrictions remain in effect, of more than one percent (1%) of any outstanding
class of equity securities of any corporation engaged, directly or through
subsidiaries, in any business activities competitive with that carried on by the
Corporation.
SECTION 5.4 INJUNCTIVE RELIEF. Without intending to limit the
remedies available to the Corporation, the Executive acknowledges that a breach
of any of the covenants contained in this Article V may result in material
irreparable injury to the Corporation for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of such a breach or threat thereof, the Corporation shall
be entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in activates
prohibited by this Article V, or such other relief as may be required to
specifically enforce any of the covenants in this Article V.
ARTICLE VI
ARBITRATION
SECTION 6.1 ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, including, but not limited to, any claim relating to
the validity, interpretation, enforceability or breach of this Agreement, or any
claim or controversy arising out of the employment relationship or the
commencement or termination of that relationship, including, but not limited to,
any claim for breach of covenant, breach of implied covenant, wrongful
termination, constructive discharge or intentional infliction of
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emotional distress, which is not settled by agreement between the parties,
shall be settled by arbitration in New York, New York, before a panel of three
arbitrators, one to be selected by the Corporation, one by the Executive and the
other by the two persons so selected, all in accordance with the rules of the
American Arbitration Association then in effect; provided, however, that the
Corporation shall nevertheless be entitled to seek relief under Article V above
in accordance with Section 5.3 thereof. In consideration of the parties'
agreement to submit to arbitration disputes with regard to this Agreement and
with regard to any alleged tort, contract or other claim arising out of the
employment relationship, and in consideration of the anticipated expedition and
minimization of expense of this arbitration remedy, each party agrees that the
arbitration provisions of this Agreement shall provide it with the exclusive
remedy, except as provided in the preceding sentence, and each party expressly
waives any right it may have to seek redress in any other form except as
provided herein. The parties further agree that the arbitrators acting hereunder
shall be empowered to assess no remedy other than payment of compensatory
damages or an order (including temporary, preliminary of permanent injunctive
relief) enforcing the provisions of Article V above. The expenses of the
arbitration proceeding plus the reasonable attorneys fees and disbursements
incurred by the Executive in connection therewith shall be paid by the
Corporation. Any decision or order of the majority of arbitrators shall be
binding upon the parties hereto and judgment thereon may be entered in the
Supreme Court of the State of New York or any other court having jurisdiction.
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ARTICLE VII
NOTICES
SECTION 7.1 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if and when (A) delivered
personally, or (B) mailed by United States registered or certified mail (return
receipt requested), (C) sent by nationally recognized overnight courier system,
or (D) sent by telecopier transmission. Any notice by telecopier shall be
followed within five (5) days by written notice, as set forth in any of items
(a) through (c) above.
SECTION 7.2 ADDRESSES.
(A) Any notice given to the Corporation shall be addressed to:
Winston Resources, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
(B) Any notice given to the Executive shall be addressed to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Syracuse & Hirschtritt LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 OBLIGATION TO PAY. The Corporation's obligation to pay
the Executive the compensation and to make the arrangements provided herein
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, any setoff, counterclaim,
recoupment, defense or other right which the Corporation may have against the
Executive or anyone else. All amounts payable by the Corporation hereunder shall
be paid without notice or demand. Except as expressly provided herein, the
Corporation waives all rights it may now have or may hereafter have conferred
upon it, by statute or otherwise, to terminate, cancel or rescind this Agreement
in whole or in part. Except as otherwise provided herein, each and every payment
made hereunder by the Corporation shall be final and the Corporation will not
seek to recover for any reason all or part of such payment from the Executive or
any person entitled thereto. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment, and if Executive obtains such other employment, any compensation
earned by Executive pursuant thereto shall not be applied to mitigate any
payment made to the Executive pursuant to this Agreement except to the extent
specifically provided in Section 4.2(a).
SECTION 8.2. EXPRESS ASSUMPTION. The Corporation shall require
any successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Corporation, by written agreement, to assume expressly and agree to perform this
Agreement in the same manner and to the same
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extent that the Corporation would
be required to perform it if no such succession had taken place. As used in this
Agreement, the term "Corporation" shall mean the Corporation as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
executes and delivers the agreement required by this Section 8.2 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
SECTION 8.3 NONASSIGNABILITY BY THE EXECUTIVE. Neither this
Agreement nor any right, duty, obligation or interest hereunder shall be
assignable or delegable by the Executive without the Corporation's prior written
consent; provided, however, that nothing in this paragraph shall preclude the
Executive from designating any of his beneficiaries to receive any benefits
payable hereunder upon his death, or the executors, administrators, or other
legal representatives from assigning any rights hereunder to the person or
persons entitled thereto.
SECTION 8.4 ENTIRE AGREEMENT; BINDING AGREEMENT. This
Agreement shall constitute the entire agreement between the Executive and the
Corporation concerning the Executive's employment by the Corporation. This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto, any successors to or assigns of the Corporation and the Executive's
heirs and the personal representatives of the Executive's heirs and the personal
representatives of the Executive's estate.
SECTION 8.5 SEVERABILITY. If the final determination of a court of
competent jurisdiction declares, after the expiration of the time within which
judicial review (if permitted) of such determination may be perfected, that any
term or provision herein is invalid or unenforceable, (A) the remaining terms
and provisions hereof shall be unimpaired,
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and (B) the invalid or unenforceable
term or provision shall be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision. Any provision in this Amendment
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating or affecting the remaining provisions
hereof in such jurisdiction, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 8.6 AMENDMENT; WAIVER. No provisions of this Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing, signed by the Executive and an authorized officer of
the Corporation. No waiver by either party hereto at any time of any breach by
the other party hereto of compliance with any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of any
similar or dissimilar provision or condition at such same or at any prior or
subsequent time.
SECTION 8.7 GOVERNING LAW. All matters effecting this Agreement,
including the validity thereof, are to be governed by, interpreted and construed
in accordance with the laws of the State of New York without regard to conflicts
of law provisions.
SECTION 8.8 SUPERSEDES PREVIOUS AGREEMENTS. This Agreement
supersedes all prior or contemporaneous negotiations, commitments, agreements
and writings with respect to the subject matter hereof (including the Prior
Agreement), all such other negotiations, commitments, agreements and writings
will have no further force or effect, and the parties to
19
any such other
negotiations, commitment, agreement or writing will have no further rights or
obligations thereunder. However, this Amendment is in addition to and not in
lieu of any other plan providing for payments to or benefits for the Executive.
SECTION 8.9 COUNTERPARTS. This Agreement may be executed by any
of the parties hereto in counterpart, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one an the same
instrument.
SECTION 8.10 HEADINGS. The headings of paragraphs herein are
included solely for convenience of reference and shall not control the meaning
of interpretation of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the Corporation has caused the Agreement to be
signed by its officer pursuant to the authority of its Board of Directors, and
the Executive has executed this Agreement as of the day and year first written
above.
WINSTON RESOURCES, INC.
By:_________________________
Name:____________________
Title:___________________
----------------------------
Executive
20
EX-10.9
EXECUTION ORIGINAL
FIFTH AMENDMENT OF LEASE
THIS FIFTH AMENDMENT OF LEASE (this "Amendment") dated as of the 13th
day of March, 1997, between ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇ ▇▇▇▇ limited liability
company with its office c/o Axiom Real Estate Management, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Landlord") and WINSTON RESOURCES, INC., a
Delaware corporation with its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord or Landlord's predecessor-in-interest, Nineteen New
York Properties Limited Partnership, and Tenant have heretofore entered into an
Agreement of Lease dated as of August 8, 1990, as amended by a First Amendment
of Lease dated as of March 1, 1992, a Second Amendment of Lease dated as of
January 29, 1993, a Third Amendment of Lease dated as of February 19, 1993, a
Fourth Amendment of Lease dated as of April 1, 1994, a letter agreement dated
June 14, 1994, a Storage Space Agreement dated March 29, 1995 and a Storage
Space Agreement dated as of May 28, 1996 (collectively, the "Lease"), pursuant
to which Landlord leased to Tenant and Tenant did hire from Landlord the entire
seventh (7th) floor (the "Seventh Floor Premises"), a portion of the eighth
(8th) floor (the "Existing Eighth Floor Premises") and certain basement and
sub-basement storage space located in the building known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Building"), upon and subject to all of the terms,
covenants and conditions as are more particularly described in the Lease;
WHEREAS, the Existing Eighth Floor Premises was leased by Landlord to
Tenant for a term expiring on February 28, 1997 (the "Existing Eighth Floor
Expiration Date") and Tenant desires to lease from Landlord other space on the
eighth (8th) floor of the Building in substitution thereof and remove its
business operations from the Existing Eighth Floor Premises to such other eighth
(8th) floor premises; and
WHEREAS, the parties hereto desire to modify the Lease in certain
respects to provide for the inclusion therein of such other eighth (8th) floor
space, to be demised to Tenant upon such terms, provisions and conditions as are
more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms contained in this
Amendment which are not otherwise defined herein shall, for the purposes
hereof, have the same meanings ascribed to them in the Lease.
2. New Eighth Floor Premises. Effective as of the date of the
mutual execution and delivery of this Amendment by the parties hereto (the
"Adjustment Date") and for the remainder of the Term of the Lease there shall
be added to and included in the Premises the following additional space in the
Building, to wit:
A portion of the eighth (8th) floor of the Building
substantially as shown hatched on the floor plan annexed
hereto as Exhibit 1 and made a part hereof (the "New Eighth
Floor Premises"),
so that the term "Premises" as defined in the Lease shall mean collectively, the
Seventh Floor Premises, the New Eighth Floor Premises and, up to and including
the Existing Eighth Floor Expiration Date (as extended pursuant to the terms
hereof), the Existing Eighth Floor Premises. Landlord does hereby lease to
Tenant, and Tenant does hereby hire from Landlord, the New Eighth Floor Premises
subject and subordinate to all superior leases and superior mortgages as
provided in the Lease and upon and subject to all the covenants, agreements,
terms and conditions of the Lease, except to the extent that they are
inappropriate or inapplicable to the New Eighth Floor Premises or are
supplemented by this Amendment.
3. Rent.
1. Effective as of the Adjustment Date, paragraph (iii) of
subsection B of Article 1 of the Lease shall be deemed modified by inserting the
following as subparagraph (k) at the end thereof:
"(k) with respect to the New Eighth Floor Premises,
for the period from the Adjustment Date through and
including the Expiration Date, $170,221.00 per annum,
payable in equal monthly installments of $14,185.08
each."
(b) Notwithstanding anything to the contrary hereinabove set
forth, provided the Lease is in full force and effect and Tenant is not in
material default thereunder (beyond the giving of notice and the expiration of
any applicable grace periods), Tenant shall be entitled to a credit against the
Rent payable with respect to the New Eighth Floor Premises only (exclusive of
the Electrical Inclusion Factor
2
payable with respect to the New Eighth Floor
Premises) for the period commencing on the Adjustment Date and ending on the
earlier to occur of (i) the six (6) month anniversary of the Adjustment Date or
(ii) the second (2nd) month anniversary of the date Tenant, or anyone claiming
under or through Tenant, first occupies the New Eighth Floor Premises for
business.
(c) It is expressly understood and agreed by the parties hereto
that the Rent (inclusive of the Electrical Inclusion Factor) set forth in
subparagraphs (g) - (i) of paragraph (iii) of subsection B of Article 1 of the
Lease, as restated below, shall be deemed payable with respect to the Seventh
Floor Premises only:
"(g) for the period
commencing August 1, 1996 through July 31,
1998, Three Hundred Ninety-Nine Thousand Two
Hundred Thirty-One and 38/100 ($399,231.38)
Dollars per annum, payable in equal monthly
installments of Thirty-Three Thousand Two
Hundred Sixty-Nine and 28/100 ($33,269.28)
Dollars each;
(h) for the period
commencing August 1, 1998 through July 31,
2000, Four Hundred Twelve Thousand Seven
Hundred Thirteen and 78/100 ($412,713.78)
Dollars per annum, payable in equal monthly
installments of Thirty-Four Thousand Three
Hundred Ninety-Two and 82/100 ($34,392.82)
Dollars each; and
(i) for the period
commencing August 1, 2000 through the
Expiration Date, Four Hundred Thirty-Nine
Thousand Six Hundred Eighty and 38/100
($439,680.38) Dollars per annum, payable in
equal monthly installments of Thirty-Six
Thousand Six Hundred Forty and 03/100
($36,640.03) Dollars
each;".
(d) It is expressly understood and agreed by the parties
hereto that the Rent (inclusive of the Electrical Inclusion Factor) set forth in
subparagraph (j) of paragraph (iii) of subsection B of Article 1 of the Lease,
as amended and restated below, shall be deemed payable with respect to the
Existing Eighth Floor Premises only:
"(j) with respect to the Existing Eighth Floor
Premises, for the period from July 1, 1993 through and
including the Relocation Date (as hereinafter defined),
Fifty-Nine Thousand Two Hundred Thirty-Two and 00/100
($59,232.00) Dollars per annum, payable in equal monthly
installments of Four Thousand Nine Hundred Thirty-Six and
3
00/100 ($4,936.00) Dollars each;".
4. Escalations.
(a) Separate computations of the escalations in the Rent under
Article 28 of the Lease shall be made with respect to each of the Seventh Floor
Premises, the Existing Eighth Floor Premises and the New Eighth Floor Premises.
(b) For the purposes of such computation as the same respects
the New Eighth Floor Premises, subsection B of Article 1 of the Lease shall be
deemed amended as of the Adjustment Date by inserting the following definitions,
which shall be applicable to the New Eighth Floor Premises only:
"(xx) 'New Eighth Floor Premises Base Tax Year' shall
mean the Tax Year 1997/1998.
(xxi) 'Tenant's New Eighth Floor Premises Proportionate
Share' shall mean two and one-tenth percent (2.1%),
which proportionate share was computed by dividing
the number of rentable square feet deemed to be in
the New Eighth Floor Premises by 265,646, which is
the number of rentable square feet deemed to be in
the Building.
(xxii) 'New Eighth Floor Premises Base Labor Year' shall mean
the calendar year 1997.
(xxiii) 'New Eighth Floor Premises Base Energy Year' shall
mean the calendar year 1997.
(xiv) 'New Eighth Floor Premises Labor Rate Factor' shall
mean 5,491.
(xxv) 'New Eighth Floor Premises Labor Rate Multiple' shall
mean one (1)."
(c) It is expressly understood and agreed by the parties hereto
that the definitions set forth in paragraphs (iv), (vi), (vii), (viii), (ix),
(x), (xi) and (xii) of subsection B of Article 1 of the Lease shall be
applicable with respect to the Seventh Floor Premises only and that the
definitions set forth in paragraphs (xiv) through (xix) of subsection B of
Article 1 of the Lease shall be applicable with respect to the Existing Eighth
Floor Premises only. In addition, Landlord and Tenant expressly agree and
acknowledge that the terms, conditions and provisions of Article 40 of the Lease
shall be deemed to be inapplicable with respect to the
4
New Eighth Floor Premises.
5. Electricity.
(a) Landlord shall redistribute electrical energy in amounts
sufficient to service all of Tenant's electrical needs within the New Eighth
Floor Premises, including the air-cooling units located therein, as specified in
the Engineering Plans (as hereinafter defined). The provisions of subsection H
of Article 29 of the Lease shall be applicable with respect to the New Eighth
Floor Premises. In applying the terms, conditions and provisions of such
subsection to the New Eighth Floor Premises, the term "Electrical Inclusion
Factor" shall be deemed to mean, as the same respects the New Eighth Floor
Premises, $16,473.00 per annum. Notwithstanding the provisions of Article 29 of
the Lease to the contrary, Landlord agrees that it shall not increase the
Electrical Inclusion Factor for the New Eighth Floor Premises during the twelve
(12) month period immediately following the Adjustment Date.
6. Heating. Landlord shall furnish adequate heat to the New Eighth
Floor Premises on business days from 8:00 A.M. to 6:00 P.M. as and when
required by law.
7. Second Additional Security Deposit. Tenant shall deposit with
Landlord on the date of the execution and delivery of this Amendment by Tenant,
the amount of $18,827.22 in cash (the "Second Additional Security Deposit") as
additional security for the faithful performance and observance by Tenant of the
terms, conditions and provisions of the Lease, including, without limitation,
the surrender of possession of the Premises to Landlord as provided therein. The
Second Additional Security Deposit shall be added to and held as part of the
Security Deposit subject to and in accordance with the provisions of paragraph 6
of the Second Amendment of Lease. Notwithstanding the provisions of paragraph 6
of the Third Amendment of Lease to the contrary, Tenant agrees that Landlord
shall continue to hold the Additional Security Deposit made by Tenant with
respect to the Existing Eighth Floor Premises following the surrender of such
space to Landlord, which shall be held and applied in accordance with paragraph
6 of the Second Amendment of Lease.
8. Condition of the New Eighth Floor Premises. Tenant acknowledges that
it has examined the New Eighth Floor Premises and except for the work to be
performed by Landlord in accordance with Schedule A annexed hereto and made a
part hereof, accepts the New Eighth Floor Premises in its condition and state of
repair existing as of the date of this Amendment and further agrees that
Landlord shall have no other obligation to perform any work or make any
installations in order to prepare the New Eighth Floor Premises for Tenant's
occupancy. Landlord
5
hereby represents that as of the date hereof, Landlord is
not in receipt of written notice from any governmental authority that the New
Eighth Floor Premises are in violation of law. The New Eighth Floor Premises
shall be prepared by Tenant for Tenant's occupancy in accordance with Schedules
B, C and D annexed hereto and made a part hereof and in accordance with all
other terms, conditions and provisions contained in the Lease as modified
hereby.
9. Extension of the Existing Eighth Floor Premises Term.
Notwithstanding the provisions of the Lease to the contrary, effective as of the
Adjustment Date, the Existing Eighth Floor Premises Expiration Date shall be
extended from February 28, 1997 to the date on which Tenant relocates its
business operations from the Existing Eighth Floor Premises to the New Eighth
Floor Premises in accordance with paragraph 10 of this Amendment (the
"Relocation Date"). For the period from March 1, 1997 through the Relocation
Date or earlier termination of the Lease, Tenant shall continue to pay the Rent
as shall have been payable by Tenant for the Existing Eighth Floor Premises
during the month of February, 1997 and shall continue to pay all items of
additional rent or other escalation payments (with all base years as presently
contained in the Lease) as presently provided in the Lease, pro-rated through
the Relocation Date or such earlier date that the Lease may be terminated
pursuant to law or under the Lease.
10. Relocation to New Eighth Floor Premises. Within fifteen (15) days
following the date that Tenant's Initial Alteration to the New Eighth Floor
Premises is substantially completed, Tenant shall move its business operations
conducted within the Existing Eighth Floor Premises to the New Eighth Floor
Premises at Tenant's expense (including, without limitation, the relocation of
all of Tenant's furniture, fixtures, equipment and other personal property) and
upon failure of Tenant to so move to the New Eighth Floor Premises, Landlord
may, as Tenant's agent, remove Tenant from the Existing Eight Floor Premises to
the New Eighth Floor Premises.
11. Release. Provided and upon the condition Tenant relocates from the
Existing Eighth Floor Premises and surrenders possession thereof in the
condition required under the Lease (as modified hereby), effective as of the
Relocation Date, Tenant and Landlord shall be deemed to have mutually released
each other, and their respective successors and assigns of and from any and all
claims, damages, obligations, liabilities, actions and causes of action, of
every kind and nature whatsoever arising in connection with the Existing Eighth
Floor Premises, except that nothing herein contained shall be deemed to
constitute a release or discharge of Tenant with respect to (a) any obligation
under the Lease with respect to the Existing Eighth Floor Premises which may
arise after such release but which arises solely from matters occurring prior
thereto, (b) any uncured defaults by Tenant which exist on the date of such
release, (c) all third
6
party claims in tort relating to matters arising during
the Term of the Lease, (d) all Rent, additional rent and all other amounts
payable with respect to the Existing Eighth Floor Premises which accrue prior to
the effective date of such release which are not then ascertainable or billed.
12. Brokerage. Landlord and Tenant each covenant, represent and warrant
to the other that it neither consulted nor has had any dealings or
communications with any broker or agent with regard to the New Eighth Floor
Premises or this Amendment other than Newmark & Company Real Estate, Inc. and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Company, Inc. (collectively, the "Broker"). Landlord shall pay
the Broker a commission in connection with the transactions contemplated by this
Amendment pursuant to a separate agreement between Landlord and the Broker.
Landlord and Tenant each agree to indemnify, defend and save the other harmless
from and against all cost, expense (including attorney's fees and disbursements)
or liability for any compensation, commissions or charges claimed by any broker
or agent other than the Broker with whom such party has dealt in connection with
the New Eighth Floor Premises or this Amendment. The provisions of this
paragraph 12 shall survive the expiration or earlier termination of the Lease.
13. Non-Disturbance Request. Landlord shall request a "non-disturbance
agreement" for the benefit of Tenant, from the holder of the existing first
mortgage on the Building with respect to the New Eighth Floor Premises and this
Amendment, but the failure to obtain such agreement shall not affect the
validity of this Amendment or the Lease and shall not give rise to any liability
on the part of Landlord.
14. Miscellaneous.
(a) Except as modified by this Amendment, the Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and are hereby in all respects ratified and confirmed. Tenant hereby
confirms that Landlord is not in default under any provisions of the Lease, that
there are no presently existing claims, counterclaims or defenses with respect
to the Lease and, to the extent any such claims, counterclaims and/or defenses
may exist or may have existed, Tenant hereby agrees to waive the same.
(b) The covenants, agreements, terms and conditions contained
in this Amendment shall bind and inure to the benefit of the parties hereto and,
except as otherwise provided in the Lease as hereby supplemented, their
respective successors and assigns.
7
3. This Amendment may not be changed orally but only
by a writing signed by the party against whom enforcement thereof is sought.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLC
By: Axiom Real Estate Management, Inc.
its authorized agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, General Manager
WINSTON RESOURCES, INC., Tenant
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/Secretary
8
EXHIBIT 1
Floor Plan of New Eighth Floor Premises
SCHEDULE A
LANDLORD'S WORK
A. Landlord shall, at its sole cost and expense and without charge to
Tenant, perform the following work in the New Eighth Floor Premises, all of
which shall be of design and capacity of the building standard adopted by
Landlord for the Building (collectively, "Landlord's Work"):
1. Install two (2) package air cooling units in the New
Eighth Floor Premises, including the main branch leading from such units up to
the point of connection into the New Eighth Floor Premises, which installation
shall not be considered part of the work subject to "Landlord's Contribution" as
set forth in Schedule B of this Amendment; provided, however, any ductwork
connecting such unit to the New Eighth Floor Premises shall be installed by
Tenant as part of Tenant's Initial Alteration;
2. Install missing radiators, as necessary;
3. Install replacement windows (which installation shall
be completed on or prior to the substantial completion of Tenant's Initial
Alteration); and
4. Provide Tenant with a Form ACP5, as necessary for
Tenant to perform Tenant's Initial Alteration.
B. Tenant acknowledges that all or portions of Landlord's Work may be
performed after the Adjustment Date. Accordingly, Tenant agrees to cooperate
with Landlord and/or Landlord's agents during the performance of such work for
the purpose of assisting Landlord in the completion of the same.
C. The parties hereto acknowledge that the air-cooling units to be
installed by Landlord shall meet the specifications set forth in the mechanical
plans for the New Eighth Floor Premises prepared by Landlord's engineer, HHF
Design Consulting Limited, entitled "535 Fifth Avenue, Suite 800", Drawings ▇-▇,
▇-▇, ▇-▇, SP1 and SP2 dated January 24, 1997, as the same may be revised from
time to time (collectively, the "Engineering Plans").
SCHEDULE B
TENANT'S INITIAL ALTERATION
I. Tenant shall perform or cause the performance of Alterations in and
to the New Eighth Floor Premises to prepare same for Tenant's initial occupancy
thereof (" Tenant's Initial Alteration"). All Alterations to be performed by
Tenant shall be, at a minimum, of a quality and standard equivalent to the
standards for construction set by Landlord, from time to time, for the Building,
and shall be subject to the prior approval of Landlord as set forth in Article 3
of the Lease. Tenant shall submit to Landlord or, at Landlord's direction,
Landlord's Consultant, complete and detailed architectural, mechanical and
engineering plans and specifications prepared by an architect or engineer
licensed in the State of New York and reasonably approved by Landlord, which
plans and specifications shall be stamped and certified by such architect or
engineer, showing Tenant's Initial Alteration, which plans and specifications
shall be prepared by Tenant, at Tenant's own cost and expense. Tenant's plans
and specifications shall include all information necessary to reflect Tenant's
requirements for the design and installation of any ductwork, heating,
electrical, plumbing and other mechanical systems and all work necessary to
connect any non-standard facilities to the Building's base mechanical,
electrical and structural systems. Tenant's submission shall include not less
than three (3) sets of sepias and five (5) sets of black and white prints.
II. Tenant shall not perform work which would (a) require changes to
structural components of the Building or the exterior design of the Building,
(b) require any material modification to the Building's mechanical installations
or other Building installations outside the New Eighth Floor Premises, (c) not
be in compliance with all applicable laws, rules, regulations and requirements
of any governmental department having jurisdiction over the Building and/or the
construction of the New Eighth Floor Premises, including but not limited to, the
Americans with Disabilities Act of 1990, or (d) be incompatible with the
Certificate of Occupancy for the Building. Any changes required by any
governmental department affecting the construction of the New Eighth Floor
Premises shall be performed at Tenant's sole cost.
III. At the time that Tenant submits its plans and specifications to
Landlord for Landlord's approval, such plans and specifications must be
transmitted to Landlord with a cover letter specifically stating that "the
enclosed plans and specifications are being transmitted to Landlord for its
review and approval pursuant to the terms of the Lease." Landlord or Landlord's
Consultant shall
respond to Tenant's request for approval of any plans and
specifications described in subsection A above within seven (7) business days
following the submission of such plans and specifications prepared in accordance
with the terms hereof. In the event Landlord or Landlord's Consultant shall
disapprove of all or a portion of any of Tenant's plans and specifications, such
disapproval shall be set forth in writing and shall include the reasons therefor
in reasonable detail, in which event Tenant shall revise such plans and
specifications and resubmit same to Landlord within seven (7) business days
thereafter, time being of the essence. Landlord or Landlord's Consultant shall
respond to Tenant's request for consent of any such revised plans within five
(5) business days following resubmission. The approval of plans and
specifications by Landlord or Landlord's Consultant (hereinafter referred to as
the " Final Plans") together with Tenant's satisfactory compliance with the
requirements set forth in items (1) through (4) of Schedule C annexed hereto,
shall be deemed an authorization for Tenant to proceed with Tenant's Initial
Alteration, which shall be performed in accordance with the provisions of
Article 3 of the Lease and Schedule D of this Amendment. Tenant shall reimburse
Landlord for any reasonable third-party consultant fees incurred in connection
with Tenant's Initial Alteration, but in no event greater than $2,000.00.
Neither the recommendation or designation of an architect or engineer nor the
approval of the final plans and specifications by Landlord or Landlord's
Consultant shall be deemed to create any liability on the part of Landlord with
respect to the design or specifications set forth in the Final Plans.
IV. Landlord agrees to reimburse Tenant for the cost of Tenant's Initial
Alteration, as approved by Landlord or Landlord's Consultant, (provided the same
are substantially complete within six (6) months of the date Tenant obtains its
building permit) to the extent of the lesser of (i) $164,730.00 or (ii) the
actual cost to Tenant for Tenant's Initial Alteration (" Landlord's
Contribution"). Landlord hereby agrees that up to fifteen (15%) percent of
Landlord's Contribution may be applied by Tenant to (a) the fees of Landlord's
Consultant, (b) the cost of installing telephone and computer wiring and cabling
in the Premises and (c) the following "soft" costs incurred by Tenant in
connection with Tenant's Initial Alteration: architectural and engineering fees
and filing fees. Provided this Lease is in full force and effect and Tenant is
not in material default hereunder (following the giving of notice and the
expiration of any applicable grace periods), Landlord's Contribution shall be
paid by progress payments as follows: on or before the first (1st) day of each
calendar month, Tenant may submit to each of Landlord and Landlord's Consultant
an application and certificate for payment (standard AIA Form G702) for that
portion of Tenant's Initial Alteration previously completed, which application
and certificate for payment must be accompanied by (i) all information and
documents required thereunder and (ii) a partial lien waiver executed by the
general contractor (the " General Contractor") and its subcontractors employed
in connection with Tenant's Initial Alteration covering
B-2
work previously paid for
out of prior progress payments. Provided Landlord's architect verifies in
writing that the work described in any such application and certificate for
payment has been completed in accordance with the Final Plans, Landlord, on or
about the thirtieth (30th) day of such calendar month shall remit to Tenant
ninety percent (90%) of the amount so requisitioned by Tenant or such other
amount as is approved by Landlord, based on the portion of Tenant's Initial
Alteration which has been completed, with ten (10%) percent to be retained until
final payment of Landlord's Contribution is due pursuant to the terms of this
Subsection IV. Provided this Lease is in full force and effect and Tenant is not
in default hereunder, Landlord shall pay the balance of Landlord's Contribution
to Tenant within thirty (30) days of submission by Tenant of (a) paid receipts
(or such other proof of payment as Landlord shall reasonably require) for work
done in connection with Tenant's Initial Alteration, (b) a written statement
from Tenant's architect or engineer that the work described on any such invoices
has been completed in accordance with the Final Plans, (c) a lien waiver
executed by the general contractor employed by Tenant in connection with
Tenant's Initial Alteration, (d) proof reasonably satisfactory to Landlord that
Tenant has complied with all of the conditions set forth in this Schedule B (as
applicable), which shall include, without limitation, submission of all of the
items described on Schedule D annexed hereto and made a part hereof and (e) two
(2) complete sets of "as-built" Final Plans.
B-3
SCHEDULE C
REQUIREMENTS FOR
"CERTIFICATES OF FINAL APPROVAL"
1. All required Building Department Forms must be properly filled out and
completed by the approved architect/engineer of record or Building
Department expeditor, as required.
2. All forms are to be submitted to the Landlord for the owner's review
and signature prior to submission of final plans and forms to the New
York City Building Department, as required.
3. All pertinent forms and filed plans are to be stamped and sealed by a
licensed architect and/or professional engineer, as required. All
inspections are to be performed by the architect/engineer of record
unless approved otherwise by the Landlord.
4. A copy of all approved forms, permits and approved Building Department
plans (stamped and signed by the New York City Building Department) are
to be submitted to the building office prior to start of work.
5. Copies of all completed inspection reports and Building Department
Sign-offs are to be submitted to the building office immediately
following completion of construction, as required.
6. All claims, violations or discrepancies with improperly filed plans,
applications, or improperly completed work shall become the sole
responsibility of the applicant to resolve, as required.
7. All changes to previously approved plans and applications must be filed
under an amended application, as required. The Landlord reserves the
right to withhold approvals to proceed with changes until associated
plans are properly filed with the New York City Building Department, as
required.
8. The architect/engineer of record accepts full responsibility for any
and all discrepancies or violations with all local laws and building
codes having jurisdiction over the work which arise out of errors or
omissions in such architect's or engineer's work.
9. The Landlord reserves the right to reject any and all work requests and
new work applications that are not properly filed or accompanied by
approved plans and building permits.
Checklist of "Certificates of Final Approval" required to be furnished
by Tenant pursuant to Article 3 (Alterations) of Lease.
These forms must be furnished by the Architect/ Engineer of
record or Building Department expeditor (filing agency) and approved by the
Landlord prior to submitting all plans and forms to the New York City Building
Department for final approval.
These forms must be furnished in order for Tenant to receive
"Landlord's Contribution."
Form Description
----- * PW-1 Building Notice Application (Plan work
approval application)
----- * PW-1B Plumbing/Mechanical Equipment
Application and Inspection Report
----- * PW-1 Statement Form B
----- * TR-1 Amendment Controlled Inspection
Report
----- * TR-1 Amendment Controlled Inspection
Report
----- PW-2 Building Permit Form (All Disciplines)
----- B Form 708 Building Permit "Card"
----- * TR-1 Certification of Completed Inspection and
Certified Completion Letter by
Architect/Engineer of record or Building
Department expeditor
----- PW-3 Cost Affidavit Form
----- * PW-6 Revised Certificate of Occupancy for
change in use (if applicable)
C-2
* These items must be perforated (with the date and New York City
Building Department Stamp) to signify New York City Building Department
Approval. All forms must bear proper approvals and sign-offs prior to
authorization given by the Landlord to proceed with the work.
C-3
SCHEDULE D
TENANT ALTERATION WORK AND NEW CONSTRUCTION
CONDITIONS AND REQUIREMENTS
1. No Alterations are permitted to commence until original Certificates of
Insurance required from Tenant's general contractor (the "General
Contractor") and all subcontractors complying with the attached
requirements are on file with the Building office.
2. All New York City Building Department applications with assigned BN#
and permits must be on file with the Building office prior to starting
work. A copy of the building permit must also be posted on the job site
by the General Contractor. The General Contractor shall make all
arrangements with Landlord's expeditor for final inspections and
sign-offs prior to substantial completion.
3. The General Contractor shall comply with all Federal, State and local
laws, building codes, OSHA requirements, and all laws having
jurisdiction over the performance and handling of the Alterations.
4. The existing "Class E" fire alarm system (including all wiring and
controls), if any, must be maintained at all times. Any additions or
alterations to the existing system shall be coordinated with the
Building office as required. All final tie-in work is to be performed
by Landlord's fire alarm vendor and coordinated by the General
Contractor. All costs for the tie-ins are reimbursable to Landlord by
Tenant.
5. All wood used, whether temporary or not, such as blocking, form work,
doors, frames, etc. shall be fire rated in accordance with the New York
City Building and Fire Code requirements governing this work.
6. Building standby personnel (i.e. Building operating engineer and/or
elevator operator), required for all construction will be at Landlord's
discretion. Freight elevators used for overtime deliveries must be
scheduled in writing with Landlord at least 24 hours in advance, as
required. All costs associated are reimbursable to Landlord by Tenant.
7. The General Contractor shall comply with the Rules and Regulations of
the Building elevators and the manner of handling materials, equipment
and debris to avoid conflict and interference with Building
operations. All bulk deliveries or removals will be made prior to
8:00 a.m. and after 5:00 p.m. or
on weekends, as required.
8. No exterior hoisting will be permitted. All products or materials
specified are to be assembled on-site, and delivered to the site in
such a manner so as to allow unobstructed passage through the
Building's freight elevator, lobbies, corridors, etc. The General
Contractor will be responsible for protection of all finished spaces,
as required.
9. All construction personnel must use the freight elevator at all times.
Any and all tradesman found riding the passenger elevators without
prior approval from Landlord will be escorted out of the Building and
not be allowed re-entry without written approval from the Building
office.
10. During the performance of Alterations, Tenant's construction
supervisor or job superintendent must be present on the job site at
all times.
11. During the performance of Alterations, all demolition work shall be
performed after 6:00 p.m. during the week or on weekends. This would
include carting or rubbish removal as well as performing any operations
that would disturb other Building tenants or other occupants (drilling,
chopping, grinding, recircuiting, etc.).
12. No conduits or cutouts are permitted to be installed in the floor slab
without prior written approval from Landlord. Landlord reserves the
right to restrict locations of such items to areas that will not
interfere with the Building's framing system or components. No conduits
or cutouts are permitted outside of Tenant's Premises.
13. Plumbing connections to Building supply, waste and vent lines are to be
performed after normal working hours, and coordinated with the Building
manager, and are to include the following minimum requirements:
A. Separate shutoff valves for all new hot and/or cold water supply
lines (including associated access doors).
B. Patch and repair of existing construction on floor below,
immediately following completion of plumbing work (to be
performed after normal working hours, as required).
14. The General Contractor must coordinate all work to occur in public
spaces, core areas and other tenant occupied spaces with Landlord, and
perform all such work after normal working hours (to include associated
patch and repair work). The General Contractor shall provide all
required protection of
D-2
existing finishes within the affected area(s).
15. The General Contractor must perform all floor coring, drilling or
trenching after normal business hours, and obtain Landlord's permission
and approval of same prior to performing such work.
16. Convector mounted outlets and associated conduits, wiring, boxes, etc.,
shall be located and installed in areas where they will not hinder the
operation or maintenance of existing fan coil units or prevent removal
or replacement of access panels or removable covers.
17. The General Contractor shall be responsible for all final tests,
inspections and approvals associated with all modifications, deletions
or additions to Building Class "E" systems and equipment.
18. Recircuiting of existing power/lighting panels and circuits affecting
Building and/or tenant operations are to be performed after normal
business hours and coordinated with the Building office in advance, as
required.
19. All burning and welding to be performed in occupied or finished areas
shall be performed after normal business hours and coordinated with the
Building office in advance, as required. Proper ventilation of the work
area will be required in order to perform this work.
20. The General Contractor shall provide Axiom Real Estate Management,
Inc. and the Building office with all approved submittal and closeout
documents as well as all required final inspections and Building
Department sign-offs just prior to or immediately following
completion of construction.
21. Any and all alterations to the Building sprinkler system (including
draining of system) are to be performed after normal business hours and
coordinated with the Building office, as required. All costs associated
with the shut down, drain and refill of the sprinkler system are
reimbursable to Landlord.
22. The General Contractor shall be responsible for any and all daily
cleanup required to keep the job site clean throughout the entire
course of the Alterations. No debris shall be allowed to accumulate in
any public spaces.
23. The General Contractor shall be responsible for proper protection of
all existing finishes and construction for Alterations to be performed
in common Building areas. All Alterations to be performed in occupied
areas outside of the Premises shall be performed after normal business
hours and coordinated with the Building office, as required.
D-3
24. The General Contractor shall perform any and all hoisting associated
with the Alterations after normal business hours. The General
Contractor will obtain all required permits and insurance to perform
work of this nature. The General Contractor shall specify hoisting
methods and provide all required permits and insurance to Axiom Real
Estate Management, Inc. and the Building office prior to commencement
of Alterations.
25. Union labor shall be used by all contractors and subcontractors
performing any and all Alterations within the Building. All contractors
and subcontractors shall perform all work in a professional manner, and
shall work in close harmony with one another as well as with the
Building management and maintenance personnel.
26. The General Contractor shall forward complete copies of all approved
contractor submittal, and Building and Fire Department sign-offs and
Statement of Responsibility forms, to the Building office immediately
following completion of construction.
INSURANCE REQUIREMENTS
LIABILITY LIMITATIONS
A. Comprehensive or Commercial General Liability Insurance written on an
occurrence basis, to afford protection of $3,000,000 combined single
limit for personal injury, bodily injury and/or death and Broad Form
property damage arising out of any one occurrence; and which insurance
shall include coverage for premises-operations (including explosion,
collapse and underground coverage), elevators, contractual liability,
owner's and contractor's protective liability, and completed operations
liability.
B. Comprehensive Auto Liability Insurance covering the use of all owned,
non-owned and hired vehicles providing bodily injury and property
damage coverage, all on a per occurrence basis, at a combined single
limit of $1,000,000.
C. Worker's Compensation Insurance providing statutory benefits for
contractor's employees and Employer's Liability Coverage in an amount
not less than $100,000/$500,000/$100,000.
D. Property coverage damage to or loss of use of contractor's equipment.
D-4
CERTIFICATE HOLDER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLC
c/o Axiom Real Estate Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ADDITIONAL INSUREDS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLC
c/o Axiom Real Estate Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Salomon Brothers Realty Corp.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Westhill Equities LLC and
Zeus Property LLC
each having an address at
c/o Emmes Realty Advisors LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Emmes Realty Advisors LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Nineteen New York Properties Limited Partnership
c/o Axiom Real Estate Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Four New York Properties LLC,
1626 New York Associates, L.P. and
Winthrop Financial Associates Limited Partnership
each having an address at
c\o First Winthrop Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
First Winthrop Corporation
▇-▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Axiom Real Estate Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In addition to listing each of the Additional Insured parties, as noted above,
the Certificate of Insurance, general liability form, shall state that "The
General Aggregate limit applies separately to each project."
The name and address of the Additional Insureds shall appear on the Certificate
of Insurance. The insurance agent's address and telephone number is also
required.
D-6