SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the quarterly period ended JULY 3, 1999
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the transition period from to
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Commission file number: 0-24179
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KASPER A.S.L., LTD.
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(Exact name of registrant as specified in its charter)
DELAWARE 22-3497645
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(State of Incorporation) (IRS Employer Identification No)
77 METRO WAY, SECAUCUS, NEW JERSEY 07094
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(Address and zip code of principal executive office)
(201) 864-0328
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(Registrant's telephone number, including area code)
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 [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS.
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes [X] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
The number of shares of the registrant's Common Stock, $.01 par value,
outstanding as of August 16, 1999 was 6,800,000.
#792931 v1
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KASPER A.S.L., LTD. AND SUBSIDIARIES
INDEX
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<CAPTION>
Page No.
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements:
<S> <C>
Condensed Consolidated Balance Sheets at July 3, 1999 and January 2, 1999 . . . . . . . . . . . . . . 3
Condensed Consolidated Statements of Operations for the Thirteen weeks ended
July 3, 1999 and Thirteen weeks ended July 4, 1998 . . . . . . . . . . . . . . . . . . . . 4
Condensed Consolidated Statements of Operations for the Twenty-six weeks ended
July 3, 1999 and Twenty-six weeks ended July 4, 1998 . . . . . . . . . . . . . . . . . . . .5
Condensed Consolidated Statements of Cash Flows for the Twenty-six weeks ended
July 3, 1999 and Twenty-six weeks ended July 4, 1998 . . . . . . . . . . . . . . . . . . . .6
Notes to Condensed Consolidated Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . .7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations . . . . . . . . . . . . 10
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
EXHIBIT INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
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ITEM 1. FINANCIAL STATEMENTS
KASPER A.S.L., LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except per share data)
<TABLE>
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------------------ ---- ----------------
ASSETS JULY 3, JANUARY 2,
1999 1999
------------------ ---- ----------------
(Unaudited)
<S> <C> <C>
Current Assets:
Cash and cash equivalents.............................................. $ 10,886 $ 2,437
Accounts receivable-net of allowances for possible losses of
$15,621 and $16,754, respectively................................. 31,651 32,721
Inventories............................................................ 84,467 100,435
Prepaid expenses and other current assets.............................. 6,453 6,068
------------------ ----------------
Total Current Assets................................................... 133,457 141,661
------------------ ----------------
Property, Plant and Equipment, at cost less accumulated
depreciation and amortization of $7,105 and $5,500,
respectively........................................................... 16,281 16,881
Reorganization value in excess of identifiable assets, net of
accumulated amortization of $6,790 and $5,160, respectively............ 58,391 60,021
Trademarks, net of accumulated amortization of $3,036 and $2,307, respectively 47,964 48,693
Other Assets, at cost less accumulated amortization of $1,868 and $1,449,
respectively........................................................... 5,824 2,102
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Total Assets........................................................... $261,917 $269,358
================== ================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable....................................................... $13,189 $14,539
Accrued expenses and other current liabilities......................... 6,180 6,668
Interest Payable....................................................... 3,557 3,797
Income taxes payable................................................... 1,239 646
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Total Current Liabilities.............................................. 24,165 25,650
Long-Term Liabilities:
Deferred Taxes......................................................... 1,630 1,630
Long-Term Debt......................................................... 110,000 110,000
Bank Revolver.......................................................... -- 7,569
Minority Interest...................................................... 426 459
------------------ ----------------
Total Liabilities...................................................... 136,221 145,308
Commitments and Contingencies
Shareholders' Equity:
Common Stock, $0.01 par value; 20,000,000 shares
authorized; 6,800,000 shares issued and outstanding............... 68 68
Preferred Stock, $0.01 par value; 1,000,000 shares
authorized; none issued and outstanding........................... -- --
Capital in excess of par value......................................... 119,932 119,932
Retained Earnings...................................................... 5,881 4,142
Cumulative Other Comprehensive Income.................................. (185) (92)
------------------ ----------------
Total Shareholders' Equity............................................. 125,696 124,050
------------------ ----------------
Total Liabilities and Shareholders' Equity............................. $261,917 $269,358
================== ================
</TABLE>
The accompanying Notes to Condensed Consolidated Financial Statements are an
integral part of these balance sheets.
3
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KASPER A.S.L., LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
<TABLE>
<CAPTION>
THIRTEEN WEEKS THIRTEEN WEEKS
ENDED ENDED
JULY 3, JULY 4,
1999 1998
---------------------- ----------------------
(Unaudited) (Unaudited)
<S> <S> <C>
Net Sales.............................................. $55,760 $62,371
Cost of Sales.......................................... 39,371 44,507
---------------------- ----------------------
Gross Profit........................................... 16,389 17,864
Operating Expenses:
Selling, general and administrative expenses........... 16,087
15,628
Depreciation and Amortization.......................... 2,235 2,059
---------------------- ----------------------
Total operating expenses............................... 18,322 17,687
---------------------- ----------------------
Operating (loss) income................................ (1,933) 177
Interest and Financing Costs........................... 3,943 4,017
---------------------- ----------------------
Loss before provision for income taxes................. (5,876) (3,840)
Provision for Income Taxes............................. (2,468) (1,615)
---------------------- ----------------------
Net Loss............................................... $(3,408) $ (2,225)
====================== ======================
Basic loss per common share............................ (.50) (.33)
====================== ======================
Diluted loss per common share.......................... (.50) (.33)
====================== ======================
Weighted average number of shares used in computing Basic
earnings per common share........................... 6,800,000 6,800,000
Weighted average number of shares used in computing Diluted
earnings per common share........................... 6,800,000 6,800,000
</TABLE>
The accompanying Notes to Condensed Consolidated Financial Statements are an
integral part of these financial statements.
4
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KASPER A.S.L., LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS TWENTY-SIX WEEKS
ENDED ENDED
JULY 3, JULY 4,
1999 1998
---------------------- ----------------------
(Unaudited) (Unaudited)
<S> <C> <C>
Net Sales.............................................. $154,046 $158,503
Cost of Sales.......................................... 105,660 112,467
---------------------- ----------------------
Gross Profit........................................... 48,386 46,036
Operating Expenses:
Selling, general and administrative expenses........... 32,713
30,717
Depreciation and Amortization.......................... 4,431 4,118
---------------------- ----------------------
Total operating expenses............................... 37,144 34,835
---------------------- ----------------------
Operating income....................................... 11,242 11,201
Interest and Financing Costs........................... 8,245 8,128
---------------------- ----------------------
Income before provision for income taxes............... 2,997 3,073
Provision for Income Taxes............................. 1,258 1,290
---------------------- ----------------------
Net Income............................................. $1,739 $ 1,783
====================== ======================
Basic earnings per common share........................ .26 .26
====================== ======================
Diluted earnings per common share...................... .26 .26
====================== ======================
Weighted average number of shares used in computing Basic
earnings per common share........................... 6,800,000 6,800,000
Weighted average number of shares used in computing Diluted
earnings per common share........................... 6,800,000 6,800,000
</TABLE>
The accompanying Notes to Condensed Consolidated Financial Statements are an
integral part of these financial statements.
5
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KASPER A.S.L., LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
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<CAPTION>
TWENTY-SIX WEEKS TWENTY-SIX WEEKS
ENDED ENDED
---------------------- ----------------------
JULY 3, 1999 JULY 4, 1998
---------------------- ----------------------
(Unaudited) (Unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income................................................................... $1,739 $ 1,783
Adjustments to reconcile net income to net cash provided by (used in) operating
activities:
Depreciation and amortization............................................. 2,753 2,564
Amortization of reorganization value in excess of identifiable
assets............................................................... 1,630 1,629
(Loss) income applicable to minority interest............................. (33) 469
Change in allowance for possible losses on accounts receivable............ (1,133) (161)
(Increase) decrease in:
Accounts receivable....................................................... 2,203 (5,070)
Inventories............................................................... 15,968 (12,332)
Prepaid expenses and other current assets................................. (385) (1,544)
Other assets.............................................................. (4,141) --
(Decrease) increase in:
Accounts payable, accrued expenses and other current liabilities.......... (1,838)
(1,416)
Interest payable.......................................................... (240) 19
Income taxes payable...................................................... 593 (682)
---------------------- ----------------------
Total adjustments............................................................ 15,377 (16,524)
---------------------- ----------------------
Net cash provided by (used in) operating activities.......................... 17,116 (14,741)
---------------------- ----------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures, net ................................................ (1,005) (3,334)
---------------------- ----------------------
Net cash used in investing activities........................................ (1,005) (3,334)
---------------------- ----------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Bank Revolver............................................................. (7,569) 4,381
---------------------- ----------------------
Net cash (used in) provided by financing activities.......................... (7,569) 4,381
Effect of exchange rate changes on cash and cash equivalents................. (93) (59)
---------------------- ----------------------
Net increase (decrease) in cash and cash equivalents......................... 8,449 (13,753)
Cash and cash equivalents, at beginning of period............................ 2,437 16,677
---------------------- ----------------------
Cash and cash equivalents, at end of period.................................. $10,886 $2,924
====================== ======================
</TABLE>
The accompanying Notes to Condensed Consolidated Financial Statements are an
integral part of these financial statements.
6
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KASPER A.S.L., LTD. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. GENERAL
The Condensed Consolidated Financial Statements included herein have
been prepared by Kasper A.S.L., Ltd. and subsidiaries (Kasper A.S.L., Ltd. being
sometimes referred to, and together with its subsidiaries collectively referred
to, as the "Company" or "Kasper" as the context may require) without audit,
pursuant to the rules and regulations of the Securities and Exchange Commission
(the "Commission"). Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principals have been condensed or omitted from this report; as is
permitted by such rules and regulations; however the Company believes that the
disclosures are adequate to make the information presented not misleading. These
Condensed Consolidated Financial Statements included herein should be read in
conjunction with the Consolidated/Combined Financial Statements and the notes
thereto included in the Company's Annual Report on Form 10-K for the Fiscal Year
ended January 2, 1999.
In the opinion of management, the accompanying interim Condensed
Consolidated Financial Statements contain all material adjustments necessary to
present fairly the Condensed Consolidated financial condition, results of
operations, and changes in financial position of Kasper and its subsidiaries for
the interim periods presented.
NOTE 2. INVENTORIES
Inventories are valued at lower of cost or (first-in, first-out,
"FIFO") market.
Inventories consist of the following:
JULY 3, 1999 JANUARY 2, 1999
------------ ---------------
(in thousands)
Raw materials $37,307 $38,470
Finished goods 47,160 61,965
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Total inventories $84,467 $ 100,435
========= =========
NOTE 3. INCOME (LOSS) PER SHARE
The computation of income (loss) per common share is based upon the
weighted average number of common shares outstanding during the period.
7
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NOTE 4. DEBT
At July 3, 1999, there were no direct borrowings outstanding under
the BankBoston Credit Agreement and approximately $13,080,000 outstanding in
letters of credit under the facility. The Company has approximately $41,113,000
available for future borrowings as of July 3, 1999.
On July 9, 1999, the facility was amended by the Amended and Restated
Revolving Credit Facility, (the "Revolving Credit Facility"), led by The Chase
Manhattan Bank in order to fund Kasper's working capital requirements and to
finance the purchase of the Anne Klein Company LLC ("Anne Klein") trademarks
(see Note 5). The Revolving Credit Facility provides Kasper with two revolving
credit lines aggregating up to $125 million and will increase to $160 million
upon the satisfaction of certain conditions.
On June 16, 1999 the Company received consents from a majority of the
aggregate principal amount of its 12.75% Senior Notes due 2004 (the "Senior
Notes") outstanding as of May 21, 1999, to certain proposed amendments to the
Indenture, dated as of June 1, 1997 and effective June 4, 1997 (as amended by
the Supplemental Indenture, dated as of June 30, 1997, the "Indenture"), between
the Company and IBJ Whitehall Bank & Trust Company (f/k/a IBJ Schroder Bank
&Trust Company), as Trustee, governing the Senior Notes, and had executed a
Second Supplemental Indenture (the "Second Supplemental Indenture") with respect
thereto. The primary purpose of the amendments is to enable the Company to
consummate the purchase of certain trademarks and related license agreements and
certain other assets of Anne Klein (the "Trademark Purchase"). On July 9, 1999
as a result of the closing of the Revolving Credit Facility, the Second
Supplemental Indenture, dated as of June 16, 1999, became effective. As a
result, the Company was required to pay to each registered holder of Senior
Notes as of May 21, 1999, $0.02 in cash for each $1.00 in principal amount of
Senior Notes held by such registered holder as of that date. In addition, the
interest rate on the Senior Notes will increase to 13.00%, beginning January 1,
2000.
NOTE 5. ANNE KLEIN TRADEMARK PURCHASE
On March 16, 1999 the Company issued a joint press release with Anne
Klein announcing, among other things, that the Company and Anne Klein signed a
definitive agreement for the Company to purchase Anne Klein's trademarks and
selected related assets. On July 9, 1999, the Company completed the Trademark
Purchase, including ANNE KLEIN(R), ANNE KLEIN II(R) and A LINE ANNE KLEIN(TM)
and the "Lion Head Design" from Anne Klein. The aggregate purchase price for
these assets was $60,000,000. The trademark purchase was funded by the Revolving
Credit Facility and included $3,000,000 previously paid under the expired
license agreement between the Company and Anne Klein. The Company has begun
selling ANNE KLEIN(R) and A LINE ANNE KLEIN(R) Resort Collections.
NOTE 6. SEGMENT INFORMATION
The Company's primary segment is the design, distribution and wholesale
sale of women's career suits, dresses and sportswear principally to major
department stores and specialty shops. In addition, the Company operates 58
retail outlet stores throughout the United States as another distribution
channel for its products. For the purposes of decision-making and assessing
performance, Management includes the operations of Asia Expert Limited in its
wholesale segment. International operations are immaterial for segment reporting
and have been included in the wholesale segment.
8
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The Company measures segment profit as earnings before interest, taxes,
depreciation and amortization ("EBITDA"). All intercompany revenues and expenses
are eliminated in computing net sales and EBITDA. Information on segments and a
reconciliation to the consolidated financial statements are as follows:
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<CAPTION>
THIRTEEN WEEKS ENDED THIRTEEN WEEKS ENDED
JULY 3, 1999 JULY 4, 1998
--------------------------------------------- ----------------------------------------------
WHOLESALE RETAIL TOTAL WHOLESALE RETAIL TOTAL
-------------- -------------- --------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Net Sales $ 43,079 $12,681 $55,760 $ 50,424 $ 11,947 $ 62,371
EBITDA (884) 1,186 302 980 1,256 2,236
Depreciation and amortization 2,235 2,059
--------------- ---------------
Operating (loss) income (1,933) 177
Interest and financing costs 3,943 4,017
--------------- ---------------
Loss before provision for income
taxes (5,876) (3,840)
Income taxes (2,468) (1,615)
=============== ===============
Net loss $ (3,408) $ (2,225)
=============== ===============
TWENTY-SIX WEEKS ENDED TWENTY-SIX WEEKS ENDED
JULY 3, 1999 JULY 4, 1998
--------------------------------------------- ----------------------------------------------
WHOLESALE RETAIL TOTAL WHOLESALE RETAIL TOTAL
-------------- -------------- --------------- -------------- -------------- ---------------
Net Sales $ 130,257 $23,789 $154,046 $ 137,653 $ 20,850 $ 158,503
EBITDA 13,881 1,792 15,673 13,946 1,373 15,319
Depreciation and amortization 4,431 4,118
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Operating income 11,242 11,201
Interest and financing costs 8,245 8,128
--------------- ---------------
Income before provision for income
taxes 2,997 3,073
Income taxes 1,258 1,290
=============== ===============
Net income $ 1,739 $ 1,783
=============== ===============
</TABLE>
9
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ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction
with the foregoing consolidated financial statements and notes thereto. This
discussion contains forward-looking statements based on current expectations
that involve risks and uncertainties. Actual results and the timing of certain
events may differ significantly from those projected in such forward-looking
statements due to a number of factors, including those set forth at the end of
this Item.
RESULTS OF OPERATIONS
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<CAPTION>
NET SALES BY SEGMENT
(000'S EXCEPT PERCENTAGES)
SECOND QUARTER FIRST HALF
------------------------------------------------------ -------------------------------------------------------
% % % %
1999 OF TOTAL 1998 OF TOTAL 1999 OF TOTAL 1998 OF TOTAL
-------------- --------------- --------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Wholesale $ 43,079 77.3% $ 50,424 80.8% $ 130,257 84.6% $ 137,653 86.8%
Retail 12,681 22.7% 11,947 19.2% 23,789 15.4% 20,850 13.2%
------ ----- ------ ----- ------ ----- ------ -----
-------------- --------------- --------------- --------------
Total sales $ 55,760 100.0% $ 62,371 100.0% $ 154,046 100.0% $ 158,503 100.0%
EBITDA BY SEGMENT
(000'S EXCEPT PERCENTAGES)
SECOND QUARTER FIRST HALF
------------------------------------------- ----------------------------------------------
1999 1998 1999 1998
-------------- --------------- --------------- --------------
Wholesale $ (884) $ 980 $ 13,881 $ 13,946
Retail 1,186 1,256 1,792 1,373
----- ----- ----- -----
-------------- --------------- --------------- --------------
Total $ 302 $ 2,236 $ 15,673 $ 15,319
</TABLE>
THIRTEEN WEEKS ENDED JULY 3, 1999 AS COMPARED TO THIRTEEN WEEKS ENDED JULY 4,
1998
NET SALES
Net Sales for the thirteen weeks ended July 3, 1999 (the "second
quarter 1999") were $55.8 million as compared to $62.4 million for the thirteen
weeks ended July 4, 1998 (the "second quarter 1998").
Wholesale sales decreased to $43.1 million in the second quarter 1999
from $50.4 million in the second quarter 1998. The Company's suit lines were
negatively impacted by higher markdowns to move current seasonal merchandise,
specifically short-sleeve suits, accounting for the drop in sales for the
historically weak second quarter. Sales of sportswear declined slightly in the
second quarter 1999 as the result of management's decision to scale back
production that resulted in excess product and larger markdowns in the second
quarter 1998.
10
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Retail sales increased to $12.7 million in the second quarter 1999
from $11.9 million in the second quarter 1998, an increase of $.8 million or
6.7% due primarily to the net addition of 5 retail outlet stores over the last
12 months. Comparable store sales decreased with second quarter 1999 sales of
$10.4 million compared to $10.7 million for the second quarter 1998, a decrease
of 2.4%. The decline is a result of reduced traffic experienced in outlet
centers in general, as well as the Company owned stores. Retail sales were also
impacted by the poor sell-through of short-sleeve suits during the period.
Despite these facts, conversion rates, representing the percentage of customers
who make a purchase, increased approximately 24% for the second quarter 1999.
GROSS PROFIT
Gross Profit as a percentage of net sales increased to 29.4% for the
second quarter 1999, compared to 28.6% for the second quarter 1998.
The improvement over the second quarter 1998 can be attributed to
improved wholesale operations, as well as continued cost benefits as a result of
macroeconomic conditions in Asia. Wholesale gross profit as a percentage of
sales increased to 25.6% in the second quarter 1999 from 25.3% in the second
quarter 1998 as a result of the strong performance of the dress line, improved
performance of the sportswear line due to reduced production and the
discontinuance of Nina Charles(TM), which contributed negative margins in the
second quarter 1998.
Retail gross profit as a percentage of sales decreased to 42.4% in
the second quarter 1999 from 42.8% in the second quarter 1998 due to an increase
in markdowns.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses increased to $16.1
million in the second quarter 1999 as compared to $15.6 million in the second
quarter 1998, an increase of $500 thousand. Approximately $350 thousand of this
increase is attributed to increased selling, administrative and occupancy costs
related to the net addition of 5 retail outlet stores. The remaining increase of
$150 thousand is associated with wholesale operations. The increase is the
result of combined modest increases in administrative, shipping, design and
occupancy expenses of approximately $350 thousand, primarily due to increased
personnel costs and Year 2000 compliance testing. The increases were offset by
decreases in selling of approximately $130 thousand as a result of the
discontinuance of Nina Charles, and production and advertising expenses of
approximately $70 due to timing and other miscellaneous variations.
EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION AND AMORTIZATION
Earnings before Interest, Taxes, Depreciation and Amortization,
("EBITDA") decreased to $300 thousand in the second quarter 1999 from $2.2
million in the second quarter 1998. Wholesale EBITDA decreased during the period
primarily as a result of decreased sales and increased selling, general, and
administrative expenses discussed above, which were partially offset by higher
margins. Retail experienced a slight decrease in EBITDA reflecting increased
markdowns and selling, general and administrative expenses relating to the
additional 5 new stores during the second quarter 1999.
11
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AMORTIZATION OF REORGANIZATION ASSET
As a result of the reorganization of Leslie Fay, the portion of the
Company's reorganization value not attributable to specific identifiable assets
has been reported as "reorganization value in excess of identifiable assets".
This asset is being amortized over a 20-year period beginning June 4, 1997.
Accordingly, the Company incurred amortization charges for both the second
quarter 1999 and 1998 totaling approximately $825 thousand in each quarter.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization totaled $1.4 million in the second
quarter 1999 and $1.3 million in the second quarter 1998, and consist of the
amortization charges associated with the trademarks and bank fees associated
with the financing agreement, as well as fixed asset depreciation. The
trademarks are being amortized over 35 years beginning June 4, 1997 and resulted
in amortization charges in both the second quarter 1999 and 1998 of
approximately $400 thousand in each quarter. The bank fees are being amortized
over the life of the financing agreement, which is three years, and resulted in
approximately $200 thousand of amortization charges in each of the second
quarter 1999 and 1998.
INTEREST AND FINANCING COSTS
Interest and financing costs decreased slightly to $3.9 million in
the second quarter 1999 from $4.0 million in the second quarter 1998, a decrease
of approximately $100 thousand. Interest is primarily attributable to the
expense on the $110 million aggregate principal amount of the Company's Senior
Notes, which were issued on June 4, 1997. The Senior Notes currently bear
interest at 12.75% per annum, which will increase to 13.00% commencing on
January 1, 2000. The Senior Notes mature on March 31, 2004. Interest is payable
semi-annually on March 31 and September 30. Interest relating to the Senior
Notes for the second quarter 1999 totaled $3.5 million. There are no principal
payments due until maturity. To the extent that the Company elects to undertake
a secondary stock offering or elects to prepay certain amounts, a premium will
be required to be paid.
INCOME TAXES
Provision for income taxes was $(2.5) million for the second quarter
1999. This amount differs from the amount computed by applying the federal
income tax statutory rate of 34% to income before taxes because of state and
foreign taxes.
TWENTY-SIX WEEKS ENDED JULY 3, 1999 AS COMPARED TO TWENTY-SIX WEEKS ENDED JULY
4, 1998
NET SALES
Net Sales for the twenty-six weeks ended July 3, 1999 (the "first
half 1999") were $154.0 million as compared to $158.5 for the twenty-six weeks
ended July 4, 1998 (the "first half 1998").
Wholesale sales decreased to $130.3 million for the first half 1999,
from $137.7 million in the first half 1998. The discontinuance of Nina
Charles(TM) accounted for $2.5 million of the $7.4 million decline in wholesale
sales. In order to avoid the overproduction of the sportswear line that occurred
in the first half 1998, management decreased the production of sportswear in
1999, and as a result, sales of sportswear decreased $3.5 million in the first
half of 1999, resulting in a 100 basis-point increase in margin for the line.
Sales of Kasper(TM) dresses increased $1.9 million over the first half 1998, as
strong sales for the first quarter 1999 were only slightly impacted by the
downturn that affected the Company's sales in the historically weak second
12
<PAGE>
quarter 1999. Sales of the Kasper(R) suit line increased by approximately $900
thousand for the first half of 1999 with strong sales in the first quarter of
1999 compensating for the lackluster performance of the short-sleeve suit line
in the second quarter 1999. The poorer than expected performance of the
short-sleeve suit design also contributed to decreased sales in the Le Suit(TM)
and Nipon(R) labels of a combined $4.4 million for the first half 1999. The
remaining increase of approximately $200 can be attributed to international
sales in Canada and Europe.
Retail sales increased to $23.8 million in the first half 1999 from
$20.9 million in the first half 1998, an increase of approximately 13.9% due
primarily to the net addition of 5 retail outlet stores over the last 12 months.
Comparable store sales for the first half 1999 were $19.4 million as compared to
$19.0 million for the first half 1998, an increase of approximately 2.4%.
GROSS PROFIT
Gross Profit as a percentage of net sales increased to 31.4% for the
first half 1999, compared to 29.0% for the first half 1998.
The improvement over the first half 1998 can be attributed to
improved wholesale operations, as well as continued cost benefits as a result of
macroeconomic conditions in Asia. Wholesale gross profit as a percentage of
sales increased to 29.7% in the first half 1999 from 27.2% in the first half
1998. The discontinuance of Nina Charles(TM), which contributed negative margins
in the first half 1998, along with the improved performance of the sportswear
line, as previously discussed, helped improve margins for the first half 1999.
All remaining lines had increased margins, with the exception of Le Suit(TM)
which held flat.
Retail gross profit as a percentage of sales decreased to 41.0% in
the first half 1999 from 41.5% in the first half 1998 as a result of increased
markdowns.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses increased to $32.7
million in the first half 1999 as compared to $30.7 million in the first half
1998, an increase of $2.0 million. Approximately $600 thousand of this increase
is attributed to increased selling, administrative and occupancy costs related
to the net addition of 5 retail outlet stores. The remaining increase is
associated with Wholesale operations. Administrative expenses increased by
approximately $800 thousand as a result of Year 2000 compliance testing and
remediation which was substantially completed during the period, along with
other information system projects and increased personnel costs. Increases in
production, design and shipping relating primarily to increased personnel costs
were offset by a decrease in selling expense as a result of the discontinuance
of Nina Charles(TM), and resulted in the remaining increase in selling, general
and administrative expenses of $600 thousand.
EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION AND AMORTIZATION
EBITDA increased to $15.7 million in the first half 1999 from $15.3
million in the first half 1998. Despite the lower sales, wholesale EBITDA for
the first half 1999 remained comparable to the first half 1998 at $13.9 million,
directly as a result of strong margins. Retail EBITDA increased to $1.8 million
from $1.4 million as a result of increased sales relating to the additional 5
new stores and modest increases in comparable store sales, which were offset
slightly by lower margins and increased expenses associated with the store
openings.
13
<PAGE>
AMORTIZATION OF REORGANIZATION ASSET
As a result of the Reorganization, the portion of the Company's
reorganization value not attributable to specific identifiable assets has been
reported as "reorganization value in excess of identifiable assets". This asset
is being amortized over a 20-year period beginning June 4, 1997. Accordingly,
the Company incurred amortization charges for both the first half 1999 and 1998
totaling approximately $1.6 million in each half year.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization increased to approximately $2.8 million
in the first half 1999 from approximately $2.5 million in the first half 1998
and consist of the amortization charges associated with the trademarks and bank
fees associated with the financing agreement, as well as fixed asset
depreciation. The trademarks are being amortized over 35 years beginning June 4,
1997 and resulted in amortization charges in both the first half 1999 and 1998
of approximately $800 thousand in each half year. The bank fees are being
amortized over the life of the financing agreement, which is three years,
beginning June 4, 1997 and resulted in approximately $400 thousand of
amortization charges in each of the first half 1999 and 1998.
INTEREST AND FINANCING COSTS
Interest and financing costs increased to $8.2 million in the first
half 1999 from $8.1 million in the first half 1998, an increase of approximately
$100 thousand. Interest relating to the Senior Notes totaled $7.0 million for
both the first half 1999 and 1998.
INCOME TAXES
Provision for income taxes was $ 1.3 million for the first half 1999
and 1998. This amount differs from the amount computed by applying the federal
income tax statutory rate of 34% to income before taxes because of state and
foreign taxes.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities increased to $17.1 million
during the first half 1999 as compared to cash usage of $14.7 million for the
first half 1998, primarily as a result of the decrease in inventory from the
beginning of the year.
The Company's main sources of liquidity have been cash flows from
operations and credit facilities. Effective June 5, 1997, the Company entered
into a $100 million working capital facility with BankBoston as the agent bank
for a consortium of lending institutions. The facility, as amended, provides for
a sub-limit for letters of credit of $50 million. The working capital facility
is secured by substantially all the assets of the Company. The working capital
facility expires in fiscal 2000 and provides for various borrowing rate options,
including rates based upon a fixed spread over LIBOR. The facility provides for
the maintenance of certain financial ratios and covenants and sets limits on the
14
<PAGE>
amount of capital expenditures and dividends to shareholders. Availability under
the facility is limited to a borrowing base calculated upon eligible accounts
receivable, inventory and letters of credit. The facility has been amended to
update certain financial ratios, covenants and limits on capital expenditures.
As of July 3, 1999, there were no direct borrowings outstanding, $13.1 million
in letters of credit outstanding and $41.1 million available for future
borrowings.
On July 9, 1999, the facility was amended by the Amended and Restated
Revolving Credit Facility, (the "Revolving Credit Facility") led by The Chase
Manhattan Bank in order to fund Kasper's working capital requirements and to
finance the purchase of certain trademarks and related license agreements and
certain other assets (the "Anne Klein Trademark Purchase") of Anne Klein Company
LLC ("Anne Klein"), which was completed on July 9, 1999. The Revolving Credit
Facility provides Kasper with two revolving credit lines aggregating up to $125
million and will increase to $160 million upon the satisfaction of certain
conditions. The Revolving Credit Facility also updates certain financial ratios,
covenants and limits on capital expenditures, and expires on December 31, 2003.
Pursuant to the Leslie Fay reorganization plan, the Company issued
$110 million aggregate principal amount of its Senior Notes. The Senior Notes
bear interest at 12.75% per annum and mature on March 31, 2004. Interest is
payable semi-annually on March 31 and September 30. Interest relating to the
Senior Notes for the first half 1999 totaled $7.0 million. There are no
principal payments due until maturity. To the extent that the Company elects to
undertake a secondary stock offering or elects to prepay certain amounts, a
premium will be required to be paid.
On June 16, 1999 the Company received consents from a majority of the
aggregate principal amount of its Senior Notes as of May 21, 1999, to certain
proposed amendments to the Indenture, dated as of June 1, 1997 and effective
June 4, 1997 (as amended by the Supplemental Indenture, dated as of June 30,
1997, the "Indenture"), between the Company and IBJ Whitehall Bank & Trust
Company (f/k/a IBJ Schroder Bank &Trust Company), as Trustee, governing the
Senior Notes, and had executed a Second Supplemental Indenture (the "Second
Supplemental Indenture") with respect thereto. The primary purpose of the
amendments was to enable the Company to consummate the Anne Klein Trademark
Purchase. On July 9, 1999 as a result of the closing of the Revolving Credit
Facility, the Second Supplemental Indenture, became effective. As a result, the
Company paid to each registered holder of Senior Notes as of May 21, 1999, $0.02
in cash for each $1.00 in principal amount of Senior Notes held by such
registered holder as of that date. In addition, the interest rate on the Senior
Notes will increase to 13.00%, beginning January 1, 2000.
The Company has a factoring/financing agreement with Heller
Financial, Inc. ("Heller"). It provides for Heller to act as the credit and
collection arm of the Company. The Company receives funds from Heller as the
receivables are collected. Any amounts unpaid after 120 days are guaranteed and
paid to the Company by the factor. The agreement had a two-year term expiring in
February 1998. The cost was .4% for the first $240 million in sales and .35% for
sales above that amount. The agreement was amended in January 1998 to add an
additional 18 months to the term of the arrangement and lower the rate to .35%
for the first $250 million in sales and .3% on the excess over that amount.
Capital expenditures were $1.0 million and $3.3 million for the first
half 1999 and first half 1998, respectively. Capital expenditures for the first
quarter 1999 represent funds spent for new retail stores, information systems
and general improvements.
On March 16, 1999 the Company issued a joint press release with Anne
Klein announcing, among other things, that the Company and Anne Klein signed a
definitive agreement for the Company to purchase Anne Klein's trademarks and
15
<PAGE>
related license agreements and other selected related assets. On July 9, 1999,
the Company completed the Anne Klein Trademark Purchase. The aggregate purchase
price for these assets was $60,000,000. The Anne Klein Trademark Purchase was
funded by the Revolving Credit Facility and included $3,000,000 previously paid
under the expired license agreement between the Company and Anne Klein. The
Company has begun selling ANNE KLEIN(R) and A LINE ANNE KLEIN(R) Resort
Collections.
YEAR 2000 COMPLIANCE
STATE OF READINESS
The Company has conducted a comprehensive review of its computer
systems to identify the systems that could be affected by the "Year 2000" issue.
The Year 2000 issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Any of the Company's
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000. This could result in a major system
failure or miscalculations. The Company uses software developed and supported by
third parties for all mission critical applications including order entry,
distribution, shipping, electronic data interchange ("EDI"), and for its retail
operations. Each of these software vendors has assured the Company in writing
that the current version of their software has been tested and is Year 2000
compliant. The Company performed a testing project to verify such assurances.
This testing was completed during the second quarter 1999.
These mission-critical systems were tested and required minimal
remediation. Each of these systems was tested individually as well as in-concert
with each other in comprehensive real-world scenarios. These tests revealed
several minor problems, which were quickly addressed and resolved to be Year
2000 compliant. It is important to note that it is unfeasible to test every
feature of every system. The Company, however, believes that the aspects of the
systems tested are comprehensive and representative of total system performance.
The Company is still in the process of remediating a number of
smaller non-mission-critical systems, which include stand-alone PC applications,
computer hardware, time clocks, and alarm systems. In addition, foreign offices
have been contacted, systems inventories completed and vulnerable applications
identified. These non-mission-critical systems are expected to be Year 2000
compliant by year-end.
The Company is also highly dependent on its customers' ability to
transmit and receive EDI documents such as purchase orders, invoices and advance
shipping notices. The Company has worked with all its trading partners to
upgrade all electronic transactions to the VICS 4010 standard, which is Year
2000 compliant. With the exception of several new trading partners, this process
is complete. All remaining testing is expected to be completed by the end of the
third quarter 1999.
In addition, the Company may face some risk to the extent that
suppliers of products and others with whom the Company has a material business
relationship will not be Year 2000 compliant. Accordingly, the Company has
conducted formal communications with significant suppliers and third parties in
order to determine the extent to which the Company may be vulnerable to the
failure of these suppliers and third parties to remediate their own Year 2000
issues. The Company has worked with its major trucking consolidator and believes
that its system is compliant. Similar efforts are ongoing with the Company's
overseas shippers. The Company will continue to review and evaluate the
responses it receives and periodically monitor the progress of these suppliers
and third parties in addressing their own Year 2000 issues.
16
<PAGE>
With the Anne Klein Trademark Purchase, a new set of potential Year
2000 issues has been introduced. The Company is in the process of integrating
Anne Klein's operations into the Company's network and systems in order to
minimize the potential exposure that Anne Klein's systems may present. A
detailed testing plan has been developed to verify that mission-critical
applications are compliant. This test plan and associated remediation is
expected to cost $200,000 and is expected to be completed by early October 1999.
COSTS
The total cost associated with the required testing and modifications
to become Year 2000 compliant is not expected to be material to the Company's
financial position as a whole. The estimated total cost of the Year 2000
project, excluding the additional testing of Anne Klein systems, is
approximately $750,000. This cost estimate may change as the Company completes
its Year 2000 project and obtains additional information and conducts further
testing.
RISKS
Despite all efforts, however, there can be no assurance that these
systems will be Year 2000 compliant under all the circumstances and volume
stresses that may actually be required. The possible consequences of the Company
or its key vendors, suppliers and customers not being fully year 2000 compliant
by January 1, 2000 include, among other things, delays in the delivery of
products, delays in the receipt of goods, invoice and collection errors and
inventory obsolescence. Consequently, the business and results of operations of
the Company could be materially adversely affected by a temporary inability of
the Company to conduct its business in the ordinary course for a period of time
until after January 1, 2000.
CONTINGENCY PLANS
As an additional precaution, the Company is developing contingency
plans to mitigate the possible disruption in business operations that may result
from the Company's key vendors, suppliers and customers not being Year 2000
compliant. These plans which are dependent in large part to the responses the
Company receives from third parties with whom the Company has a material
business relationship are expected to be completed during the third quarter of
1999. Once developed, contingency plans and related cost estimates will be
continually refined as additional information becomes available.
DISCLOSURE REGARDING FORWARD-LOOKING INFORMATION
The statements contained in this Quarterly Report on Form 10-Q that
are not historical facts are "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and section 21E of the
Securities Act of 1934, as amended. Those statements appear in a number of
places in this report, including in "Management's Discussion and Analysis of
Financial Conditions and Results of Operations," and include all discussions of
trends affecting the Company's financial conditions and results of operations
and the Company's business and growth strategies as well as statements that
contain such forward-looking statements as "believes," "anticipates," "could,"
"estimates," "expects," "intends," "may," "plans," "predicts," "projects,"
"will," and similar terms and phrases, including the negative thereof. In
17
<PAGE>
addition, from time to time, the Company or its representatives have made or may
make forward-looking statements, orally or in writing. Furthermore,
forward-looking statements may be included in our other filings with the
Securities and Exchange Commission as well as in press releases or oral
statements made by or with the approval of the Company's authorized executive
officers.
We caution you to bear in mind that forward-looking statements, by
their very nature, involve assumptions and expectations and are subject to risks
and uncertainties. Although we believe that the assumptions and expectations
reflected in the forward-looking statements contained in this report are
reasonable, no assurance can be given that those assumptions or expectations
will prove to have been correct. Important factors that could cause actual
results to differ materially from our expectations include but are not limited
to, the following cautionary statements ("Cautionary Statements"):
o general economic conditions;
o the ability of the Company to adapt to changing consumer preferences
and tastes;
o the Company's limited operating history;
o potential fluctuations in the Company's operating costs and results;
o the Company's concentration of revenues;
o challenges facing the Company related to its rapid growth;
o the Company's dependence on a limited number of suppliers;
o the ability of the Company and third parties, including customers or
suppliers, to adequately address Year 2000 issues; and
o the ability of the Company to successfully integrate the businesses
acquired in the Anne Klein Trademark Purchase into the Company's
existing businesses.
All subsequent written or oral forward-looking statements attributable to
the Company or persons acting on its behalf are expressly qualified in their
entirety by the Cautionary Statements.
18
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
10.1 Lease, dated as of June 4, 1996, among 11 West 42nd
Limited Partnership as Landlord, and, Anne Klein &
Company and Mark of the Lion Associates, as tenants.
10.2 Omnibus Agreement, dated as of March 15, 1999, among
Kasper A.S.L., Ltd. and Anne Klein Company LLC.
27 Financial Data Schedule
(b) Reports on Form 8-K:
During the quarter ended July 3, 1999, a Current
Report on Form 8-K, dated June 17, 1999, was filed with the
Commission by the Company announcing that the Company
received consents from a majority of the aggregate
principal amount of its Senior Notes outstanding as of May
21, 1999, to certain proposed amendments to the Indenture
governing the Senior Notes, and had executed a Second
Supplemental Indenture with respect thereto.
The Company also announced that it had entered
into a commitment letter for the Revolving Credit Facility.
19
<PAGE>
SIGNATURES
Pursuant to the requirements 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.
KASPER A.S.L., LTD.
(Registrant)
Dated: August 16, 1999
/s/ Arthur S. Levine
----------------------------------------
Arthur S. Levine
Chairman and Chief Executive Officer
(duly authorized officer)
/s/ Mary Ann Domuracki
----------------------------------------
Mary Ann Domuracki
Executive Vice President -
Finance and Administration
(duly authorized officer and a
principal financial and
chief accounting officer)
20
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
10.1 Lease, dated as of June 4, 1996, among 11 West 42nd Limited
Partnership as Landlord, and, Anne Klein & Company and Mark of
the Lion Associates, as tenants.
10.2 Omnibus Agreement, dated as of March 15, 1999, among Kasper
A.S.L., Ltd. and Anne Klein Company LLC.
27 EDGAR Data Schedule
21
Exhibit 10.1
===============================================================================
11 WEST 42 LIMITED PARTNERSHIP,
Landlord
And
ANNE KLEIN & COMPANY
and
MARK OF THE LION ASSOCIATES,
Tenant
---------------------
LEASE
---------------------
Premises: The Entire Twentieth, Twenty-First,
Twenty-Second and Twenty-Third Floors
of 11 West 42nd Street, New York, New York
Dated: June 4, 1996
===============================================================================
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE 1 BASIC LEASE PROVISIONS.........................................................................1
ARTICLE 2 PREMISES, TERM, RENT...........................................................................4
ARTICLE 3 USE AND OCCUPANCY..............................................................................5
ARTICLE 4 CONDITION OF THE PREMISES......................................................................8
ARTICLE 5 ALTERATIONS...................................................................................10
ARTICLE 6 FLOOR LOAD....................................................................................14
ARTICLE 7 REPAIRS.......................................................................................15
ARTICLE 8 INCREASES IN TAXES AND OPERATING EXPENSES.....................................................16
ARTICLE 9 REQUIREMENTS OF LAW...........................................................................22
ARTICLE 10 SUBORDINATION.................................................................................24
ARTICLE 11 SERVICES......................................................................................26
ARTICLE 12 INSURANCE. PROPERTY LOSS OR DAMAGE: REIMBURSEMENT.............................................29
ARTICLE 13 DESTRUCTION - FIRE OR OTHER CAUSE.............................................................32
ARTICLE 14 EMINENT DOMAIN................................................................................35
ARTICLE 15 ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.........................................................36
ARTICLE 16 ELECTRICITY...................................................................................46
ARTICLE 17 ACCESS TO PREMISES............................................................................48
ARTICLE 18 DEFAULT.......................................................................................50
ARTICLE 19 REMEDIES AND DAMAGES..........................................................................51
ARTICLE 20 FEES AND EXPENSES.............................................................................54
ARTICLE 21 NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL..........................................54
ARTICLE 22 END OF TERM...................................................................................55
ARTICLE 23 QUIET ENJOYMENT...............................................................................56
ARTICLE 24 NO WAIVER; NO COUNTERCLAIM....................................................................56
ARTICLE 25 WAIVER OF TRIAL BY JURY.......................................................................57
ARTICLE 26 INABILITY TO PERFORM..........................................................................57
ARTICLE 27 BILLS AND NOTICES.............................................................................57
ARTICLE 28 RULES AND REGULATIONS.........................................................................58
ARTICLE 29 PARTNERSHIP TENANT............................................................................59
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE 30 VAULT SPACE...................................................................................60
ARTICLE 31 BROKER........................................................................................61
ARTICLE 32 INDEMNITY.....................................................................................61
ARTICLE 33 ADJACENT EXCAVATION; SHORING..................................................................62
ARTICLE 34 MISCELLANEOUS.................................................................................63
ARTICLE 35 TAX STATUS OF BENEFICIAL OWNERS...............................................................67
ARTICLE 36 SECURITY DEPOSIT..............................................................................67
ARTICLE 37 RENEWAL TERM..................................................................................69
</TABLE>
EXHIBITS:
- ---------
EXHIBIT A [Floor Plan]
EXHIBIT B Definitions
EXHIBIT C Landlord's Work
EXHIBIT D HVAC SPECIFICATIONS
EXHIBIT E Cleaning Specifications
EXHIBIT F RULES AND REGULATIONS
ii
<PAGE>
LEASE
-----
LEASE, made as of the __ day of June, 1996, between 11 WEST 42 LIMITED
PARTNERSHIP (the "Landlord"), a New York Limited Partnership, having an office
c/o Tishman Speyer Properties, L.P. 520 Madison Avenue, New York, New York 10022
and ANNE KLEIN & COMPANY ("AKC"), a New York general partnership, and MARK OF
THE LION ASSOCIATES ("MLA"; MLA and AKC are collectively the "Tenant"), a New
York general partnership, each having an office at 205 West 39th Street, New
York, New York 10018.
Landlord and Tenant hereby covenant and agree as
follows:
ARTICLE 1
BASIC LEASE PROVISIONS
----------------------
PREMISES The entire twentieth (20th), twenty-first (21st),
twenty-second (22nd) and twenty-third (23rd) floors of
the Building, as more particularly shown on Exhibit A.
BUILDING The building, fixtures, equipment and other
improvements and appurtenances now located or hereafter
erected, located or placed upon the land known as 11
West 42nd Street in the City of New York, County of New
York and State of New York.
REAL PROPERTY The Building, together with the plot of land upon which
it stands.
COMMENCEMENT DATE The date of execution of this Lease by both Landlord
and Tenant.
RENT COMMENCEMENT The date which shall be twelve months and fifteen days
after the DATE Commencement Date.
EXPIRATION DATE Last day of the month in which the sixteenth
anniversary of the Commencement Date occurs.
TERM The period commencing on the Commencement Date and
ending on the Expiration Date.
PERMITTED USES Executive and general offices for the transaction of
Tenant's business and garment sample making, garment
and piece goods storage and modification and showrooms.
<PAGE>
BASE TAX YEAR The real estate tax fiscal year commencing on July 1,
1996 and ending on June 30, 1997.
BASE EXPENSE YEAR Calendar year 1997.
TENANT'S PROPORTIONATE 12.51 percent.
SHARE
AGREED AREA OF BUILDING 840,049 rentable square feet.
AGREED AREA OF PREMISES 105,089 rentable square feet.
FIXED RENT (i) $2,049,235.50 per annum ($170,769.62 per month) for
the period commencing on the Rent Commencement Date and
ending on the day preceding the second anniversary of
the Commencement Date, both dates inclusive; (ii)
$2,417,047 per annum ($201,420.58 per month) for the
period commencing on the second anniversary of the
Commencement Date and ending on the day preceding the
third anniversary of the Commencement Date, both dates
inclusive; (iii) $2,732,314 per annum ($227,692.83 per
month) for the period commencing on the third
anniversary of the Commencement Date and ending on the
day preceding the fifth anniversary of the Commencement
Date, both dates inclusive, (iv) $3,047,581 per annum
($253,965.08 per month) for the period commencing on
the fifth anniversary of the Commencement Date and
ending on the day preceding the eleventh anniversary of
the Commencement Date, both dates inclusive; (v)
$3,257,759 per annum ($271,479.91 per month) for the
period commencing on the eleventh anniversary of the
Commencement Date and ending on the Expiration Date,
both dates inclusive.
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease, including Tenant's Tax
Payment, Tenant's Operating Payment, Electricity
Additional Rent, late charges, overtime or excess
service charges and other costs related to Tenant's
failure to perform any of its obligations under this
Lease.
RENT Fixed Rent and Additional Rent, collectively.
2
<PAGE>
INTEREST RATE The lesser of (i) two percent per annum above the then
current Base Rate charged by Citibank, N.A. or its
successor, or (ii) the maximum rate permitted by
applicable law.
SECURITY DEPOSIT (i) $6,900,000 for the period commencing on the
Commencement Date and ending on the day preceding the
seventh anniversary of the Commencement Date; (ii)
$6,400,000 for the period commencing on the seventh
anniversary of the Commencement Date and ending on the
day preceding the eighth anniversary of the
Commencement Date; (iii) $5,900,000 for the period
commencing on the eighth anniversary of the
Commencement Date and ending on the day preceding the
ninth anniversary of the Commencement Date; (iv)
$5,400,000 for the period commencing on the ninth
anniversary of the Commencement Date and ending on the
day preceding the tenth anniversary of the Commencement
Date; (v) $4,900,000 for the period commencing on the
tenth anniversary of the Commencement Date and ending
on the day preceding the eleventh anniversary of the
Commencement Date; (vi) $4,400,000 for the period
commencing on the eleventh anniversary of the
Commencement Date and ending on the day preceding the
twelfth anniversary of the Commencement Date; and (vii)
$3,200,000 for the period commencing on the twelfth
anniversary of the Commencement Date and thereafter.
BROKER Edward S. Gordon Company, Incorporated.
LANDLORD'S $4,729,005.
CONTRIBUTION
ALL CAPITALIZED TERMS USED IN THE LEASE TEXT WITHOUT DEFINITION ARE DEFINED IN
EXHIBIT B.
3
<PAGE>
ARTICLE 2
PREMISES, TERM, RENT
--------------------
Section 2.1 LEASE OF PREMISES. Subject to the terms of this Lease, Landlord
leases to Tenant and Tenant leases from Landlord the Premises for the Term. In
addition, Landlord grants to Tenant the right to use, on a non-exclusive basis
and in common with other tenants, the lobby area and other Building common
elements and common facilities. This Lease shall become effective and binding
upon its execution by Landlord and Tenant.
Section 2.2 PAYMENT OF RENT. Tenant shall pay to Landlord, without notice
or demand, and without any set-off, counterclaim, abatement or deduction
whatsoever, except as may be expressly set forth in this Lease, in lawful money
of the United States by wire transfer of funds to Landlord's account, as
designated by Landlord, or by check drawn upon a bank that is a member of the
Federal Reserve System Clearing House Interbank Payment System (i) Fixed Rent in
equal monthly installments, in advance, on the first (1st) day of each calendar
month during the Term, commencing on the Rent Commencement Date, and (ii)
Additional Rent, at the times and in the manner set forth in this Lease.
Section 2.3 FIRST MONTH'S RENT. If the Rent Commencement Date shall occur
on a date other than the first day of any calendar month, Tenant shall pay to
Landlord, on the Rent Commencement Date, a sum equal to the Fixed Rent for such
month multiplied by a fraction, the numerator of which shall be the number of
calendar days in the period from the Rent Commencement Date to the last day of
the month in which the Rent Commencement Date shall occur, both dates inclusive,
and the denominator of which shall be the number of calendar days in such month.
Section 2.4 INTEREST. If Tenant shall fail to pay any installment or other
payment of Rent when due, interest shall accrue on such installment or payment
as a late charge, from the date such installment or payment became due, at a
rate equal to the Interest Rate, provided, however, that no such interest shall
accrue in respect of up to two such installments or payments that are past due
in any consecutive twelve month period, provided further, however, that neither
such installment nor payment is past due for more than five Business Days and,
if either such installment or payment is past due for more than five Business
days, interest shall accrue thereon from the first day such installment or
payment became past due.
Section 2.5 UDC. (a) The Fixed Rent shall be abated by $1,441.8l per day
for each day beyond the later of (i) the Commencement Date and (ii) the date
Landlord has delivered the SNDA (as hereinafter defined) to Tenant (or Tenant
has waived its right to receive the SNDA) that the New York State Urban
Development Corporation ("UDC") remains in occupancy of the 21st floor of the
Premises.
4
<PAGE>
(b) Landlord shall use commercially reasonable efforts to enforce its
rights under the surrender agreement between it and UDC (the "Surrender
Agreement") to the extent that its failure to do so would adversely affect
Landlord's obligations or Tenant's rights under this Lease. For purposes of this
Section 2.5(b), the term "commercially reasonable efforts" shall not require
Landlord to expend any money (other than reasonable legal fees and expenses of
enforcing UDC's obligations under the Surrender Agreement). Landlord may settle
or compromise any such action, claim or proceeding in its sole and absolute
discretion in good faith so long as Landlord shall not act fraudulently or
intentionally wrongfully, and such settlement or compromise shall be binding
upon Tenant for all purposes of this Section 2.5(b). Prior to making any such
settlement or compromise, Landlord shall notify Tenant thereof. Within ten days
after such notice, Tenant shall have the right to undertake the prosecution of
any such action, claim or proceeding at Tenant's cost and expense in the name of
Landlord and Landlord agrees to reasonably cooperate with Tenant in connection
therewith, provided such action, claim or proceeding entails no counterclaim
against Landlord.
Section 2.6 LANDLORD'S WORK. The Fixed Rent shall be abated by $1,503.40 in
the case of 20th Floor of the Premises, by $1,441.81 in the case of the 21st
floor of the Premises, $1,382.06 in the case of the 22nd floor of the Premises
and $1,365.05 in the case of the 23rd floor of the Premises per day (without
duplication) for each day beyond the projected completion time specified in
Exhibit C that Landlord fails to substantially complete the Landlord's Work
listed in items 1,2 and 3 thereof for each floor of the Premises, provided,
however, that Tenant shall not be entitled to any such abatement if Landlord's
delay does not cause any delay in the substantial completion of Tenant's Initial
Alterations or results from Unavoidable Delay based on Tenant's timetable for
its Alterations provided to Landlord. Tenant shall immediately notify Landlord
of any such delay. To the extent Fixed Rent is abated in accordance with the
foregoing provisions, the Expiration Date shall be automatically extended by one
day for every four days that the Fixed Rate is abated on any of the floors of
the Premises.
ARTICLE 3
USE AND OCCUPANCY
-----------------
Section 3.1 (a) PERMITTED USES. Tenant shall use and occupy the Premises
for the Permitted Uses and for no other purpose. Tenant shall not use or occupy
or permit the use or occupancy of any part of the Premises in a manner
constituting a Prohibited Use. If Tenant utilizes the Premises for a purpose
which constitutes a Prohibited Use or violates any Requirement, or which causes
the Building to be in violation of any Requirement, then Tenant shall, upon
written notice from Landlord or any Governmental Authority, promptly discontinue
such use upon notice of such violation. Tenant's failure to promptly (and, in
all events, within 10 days) discontinue such use shall be a material default
hereunder and Landlord shall have the right, without Tenant having any further
period in which to cure, (i) to terminate this Lease immediately, and (ii) to
exercise any and all rights and remedies available to Landlord at law or in
equity.
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(b) LICENSES AND PERMITS. Tenant, at its expense, shall procure and at
all times maintain and comply with the terms and conditions of all licenses and
permits required for the lawful conduct of the Permitted Uses in the Premises.
Landlord represents that the Certificate of Occupancy issued for the Building
permits the use of the Premises as offices.
(c) SHOWROOM. In connection with Tenant's use of the Premises for
showrooms, Tenant, at its sole cost and expense and subject to, and upon
compliance with, this Article, Articles 5 and 9 and all Requirements, may
construct and maintain up to six showrooms in the Premises not exceeding 20,000
useable square feet in the aggregate in size. Tenant may use such showrooms for
the conduct of runway/fashion shows in such number, time of year and duration as
is consistent with the standards of Tenant's then current industry; provided,
however, that (i) not more than one hundred fifty persons shall occupy such
showrooms at any given time, (ii) such shows shall not exceed three days in
duration, (iii) Tenant shall endeavor (without liability for failure to do so)
to give Landlord reasonable advance notice of the occurrence of any such show,
(iv) Tenant shall not conduct more than twelve such shows annually, which shows
shall occur at substantially evenly spaced intervals throughout the year, and
(v) Tenant at Tenant's sole cost and expense, shall obtain and maintain any
permits or licenses (in addition to an amended certificate of occupancy)
required by applicable Requirements in order to operate such showroom space in
the manner contemplated in this subsection (c) and shall perform any and all
Alterations required, if any, by Requirements as a precondition to issuance of
any such permits or licenses, provided further, however, that the foregoing
shall not preclude Tenant from displaying and selling merchandise to a small
number of prospective purchasers at any time. In the event that Tenant shall use
or permit the use of such showroom in a manner other than as permitted by this
Section 2.2(c), and without limiting Landlord's other remedies hereunder, Tenant
shall cease and desist such use within twenty-four hours after notice by
Landlord to Tenant of such improper or unpermitted use, which notice may be
oral.
(d) SAMPLE SALES. In connection with Tenant's use of the Premises for
sales as provided herein, Tenant, subject to, and upon compliance with this
Article, Articles 5 and 9 and all Requirements, may sell sample and overstock
merchandise and merchandise rejected by customers from the Premises; provided,
however, that (i) such sales shall be private and by invitation only and shall
not be publicly advertised, (ii) such sales shall not exceed five days in
duration, (iii) Tenant shall endeavor (without liability for failure to do so)
to give Landlord reasonable advance notice of the occurrence of any such sale,
(iv) Tenant shall not conduct more than six such sales annually, which sales
shall generally occur at substantially evenly spaced intervals throughout the
year, and (v) Tenant, at Tenant's sole cost and expense, shall obtain and
maintain any permits or licenses required, if any, by Requirements as a
precondition to issuance of any such permits or licenses. In the event that
Tenant shall use or permit the use of the Premises in a manner other than as
permitted by this Section 2.2(d), and without limiting Landlord's other remedies
hereunder, Tenant shall cease and desist such use within twenty-four hours
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after notice by Landlord to Tenant of such improper or unpermitted use, which
notice may be oral.
(e) GARMENT MAKING/MODIFICATION. In connection with Tenant's use of the
Premises for garment sample making and modification as provided herein, Tenant,
subject to this Article, Articles 5 and 9 and all Requirements, may use up to
9,000 square feet of the Premises for the operation of up to 60 sewing stations,
no more than 42 of which shall operate at the same time. Tenant, at Tenant's
sole cost and expense, shall obtain and maintain any permits or licenses (in
addition to an amended certificate of occupancy) required by applicable
Requirements in order to operate such sewing machines in the manner contemplated
in this subsection (e) and shall perform any and all Alterations required, if
any, by Requirements as a precondition to issuance of any such permits or
licenses. In the event that Tenant shall use or permit the use of the Premises
in a manner other than as permitted by this Section 2.2(e), and without limiting
Landlord's other remedies hereunder, Tenant shall cease and desist such use
within twenty four hours after notice by Landlord to Tenant of such improper or
unpermitted use which may be oral.
Section 3.2 DELIVERY OF PREMISES. Landlord shall not be liable for failure
to give possession of the Premises on the Commencement Date and such failure
shall not impair the validity of the Lease or extend the Term, provided,
however, the Rent payable hereunder shall be abated until possession of the
Premises is delivered to Tenant subject to Section 2.5. The provisions of this
Article are intended to constitute "an express provision to the contrary" within
the meaning of Section 223-a of the New York Real Property Law or any successor
law or ordinance.
Section 3.3 CERTIFICATE OF OCCUPANCY. In the event Tenant's use of a
portion of the premises for garment and piece goods storage and modification or
showrooms requires an amendment to the certificate of occupancy for the Building
under applicable Requirements, Tenant directly, or through Tenant's architect on
behalf of Tenant, shall (i) file with the New York City Department of Buildings
plans for the Alterations and an application to amend the certificate of
occupancy for the Building to permit a portion of the Premises to be used for
garment and piece goods storage and modification and showrooms and (ii) retain
the Building expediter, Cole-Gillman Associates, PC, Brookridge Consulting
Services, Inc. or such other expediter selected by Tenant and reasonably
satisfactory to Landlord, in connection with such application. Tenant
acknowledges that Landlord has made no representation or warranty express or
implied, that such amendment to the certificate of occupancy can be obtained
from the City of New York and that any advice or services provided to Tenant by
Cole-Gillman Associates, PC, Brookridge Consulting Services, Inc. or such other
expediter shall be provided as Tenant's agent and not on behalf of Landlord.
Landlord shall, at Tenant's sole cost and expense, cooperate with Tenant in all
reasonable respects in connection with obtaining such amended certificate of
occupancy. Tenant shall reimburse Landlord for all out-of-pocket costs in
connection with such application or cooperation from time to time after demand
therefor. Tenant shall design and construct any Alterations required in order to
obtain such amendment to the certificate of occupancy at Tenant's sole cost
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and expense, and in accordance with the provisions of Article 5 hereof. Except
as otherwise expressly set forth in this Section 3.3, Landlord shall have no
obligation or liability with respect to any amendment to the Building
certificate of occupancy required to permit Tenant's use of a portion of the
Premises for light manufacturing and garment and piece goods storage and
showrooms.
ARTICLE 4
CONDITION OF THE PREMISES
-------------------------
Section 4.1 CONDITION. Tenant has inspected the Premises and agrees (i) to
accept possession of the Premises in the condition existing on the Commencement
Date "as is", (ii) that neither Landlord nor Landlord's agents have made any
representations or warranties with respect to the Premises or the Building
except as expressly set forth herein, and (iii) except for Landlord's
Contribution as expressly set forth in Section 4.2 hereto and except as
expressly set forth in Exhibit C hereof as Landlord's Work, Landlord has no
obligation to perform any work, supply any materials, incur any expense or make
any alterations or improvements to the Premises to prepare the Premises for
Tenant's occupancy. Any work to be performed in connection with Tenant's initial
occupancy shall be referred to hereinafter as the "Initial Installations".
Tenant's occupancy of any part of the Premises shall be conclusive evidence, as
against Tenant, that Tenant accepts possession of the Premises in its then
current condition and at the time such possession was taken, the Premises and
the Building were in a good and satisfactory condition as required by this
Lease. The Premises shall be free and clear of all tenancies and occupancies
other than this Lease and that of the New York State Urban Development
Corporation whose lease in respect of the 21st floor of the Building shall
expire after the date hereof.
Section 4.2 LANDLORD'S CONTRIBUTION. (a) Landlord agrees to advance up to
an amount equal to Landlord's Contribution toward the cost of the Initial
Installations, provided as of the date of such funding (i) this Lease is in full
force and effect, (ii) no Event of Default then exists, (iii) Citicorp Real
Estate, Inc. has approved this Lease and executed and delivered a SNDA or Tenant
has waived its right to receive such SNDA as contemplated by Article 10, and
(iv) any excess cost of the Initial Installations shall be paid by Tenant.
Landlord's Contribution shall be payable on account of labor directly related to
the Initial Installations and materials delivered to the Premises or off-site
and to be delivered to the Premises in connection with the Initial
Installations. Landlord's Contribution may also be used to pay "soft costs"
incurred in connection with the Initial Installations (consisting of
architectural, consulting, engineering, planning, permit and legal fees, and
furniture and equipment (exclusive of computer equipment other than cables
installed in connection therewith) acquired for use in the Premises), including
deposits and downpayments, in an amount which shall not exceed 15 percent of
Landlord's Contribution, including computer cabling, which costs of computer
cabling shall not exceed 4 percent of Landlord's Contribution. Upon the
completion of the Initial Alterations and satisfaction of the conditions set
forth in Section 4.2, or upon the occurrence of the date which is eighteen
months after the date Landlord delivers to
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Tenant vacant possession of the 21st floor of the Building (which date shall be
extended by reason of strikes, labor trouble or any other similar cause beyond
Tenant's control in performing the Initial Alterations), whichever first occurs,
any amount of Landlord's Contribution which has not been previously disbursed
shall be retained by Landlord; provided, however, that notwithstanding anything
contained herein to the contrary, (A) such retained amounts shall continue to be
held for the benefit of Tenant by Landlord if Tenant delivers a notice to
Landlord prior to satisfaction of the conditions set forth in Section 4.2 that
it is in dispute with any contractors, subcontractors, vendors or other
providers of service and refuses to make payments at such time or if any
contracts provide for retainage which has not then been finally paid, and (B) an
amount of Landlord's Contribution not in excess of $525,445 which has not then
been previously disbursed shall be applied against the Rent next coming due
rather than retained by Landlord. If Tenant shall have satisfied all of the
conditions to a disbursement of Landlord's Contribution contained in Section
4.2(b) and Landlord shall fail to make the full amount or any part of such
disbursement for a period of seven Business Days after receipt of notice from
Tenant that such unpaid amounts are overdue, Tenant may offset the unpaid amount
from any amount payable by Tenant hereunder, including, without limitation, from
the next succeeding monthly installment or installments of Rent due and payable
hereunder.
(b) Landlord shall make progress payments to Tenant on a monthly basis,
for the work performed to date and/or for materials delivered to the Premises
during the previous month. Each of such progress payments shall be made within
20 days next following the delivery to Landlord of requisitions therefor, signed
by a financial officer of Tenant, which requisitions shall set forth the names
of each contractor and subcontractor to whom payment is due, and the amount
thereof, and shall be accompanied by (i) with the exception of the first
requisition, copies of partial waivers of lien from all contractors,
subcontractors and materialman covering all work and materials which were the
subject of previous progress payments by Landlord and Tenant, (ii) a written
certification from Tenant's architect that the work for which the requisition is
being made has been completed substantially in accordance with the plans and
specifications approved by Landlord, (iii) to the extent appropriate, proof of
the satisfactory completion of all required inspections and issuance of any
required approvals and sign-offs by public authorities, and issuance of final
lien waivers, with respect thereto, and (iv) such other documents and
information as Landlord may reasonably request. If Tenant does not pay any
contractor as required by this provision, Landlord shall have the right, but not
the obligation, to promptly pay to such contractor all sums so due from Tenant,
and Tenant agrees the same shall be deemed Additional Rent and Landlord shall
have all remedies available under this Lease, at law or in equity for collection
from Tenant of all sums so paid by Landlord, provided, however, that Landlord
shall in no event pay any contractor or subcontractor whose right to payment
Tenant is disputing in good faith.
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ARTICLE 5
ALTERATIONS
-----------
Section 5.1 TENANT'S ALTERATIONS. (a) Tenant shall not make any
alterations, additions or other physical changes in or about the Premises
(collectively, "Alterations") (other than decorative Alterations such as
painting, wall coverings and floor coverings) without Landlord's prior written
consent, which may be withheld in Landlord's sole discretion. Landlord shall not
unreasonably withhold its consent to Alterations so long as the Alterations (i)
are non-structural and do not adversely affect the Building Systems, (ii) are
performed only by contractors or mechanics reasonably approved by Landlord to
perform such Alterations, (iii) affect only the Premises, (iv) do not affect the
certificate of occupancy issued for the Building or the Premises, except as
contemplated and permitted by Article 3, and (v) do not adversely affect any
service required to be furnished by Landlord to Tenant or to any other tenant of
the Building.
(b) Prior to making any Alterations, Tenant, at its expense, shall (i)
submit to Landlord for its written approval, detailed plans and specifications
(including layout, architectural, mechanical and structural drawings) of each
proposed Alteration, and with respect to any Alteration affecting any Building
System, Tenant shall submit proof that the Alteration has been designed by, or
reviewed and approved by, Landlord's engineer for the relevant Building System,
(ii) obtain all permits, approvals and certificates required by any Governmental
Authorities, (iii) furnish to Landlord duplicate original policies or
certificates of worker's compensation (covering all persons to be employed by
Tenant, and Tenant's contractors and subcontractors in connection with such
Alteration) and comprehensive public liability (including property damage
coverage) insurance and Builder's Risk coverage (issued on a completed value
basis) all in such form, with such companies, for such periods and in such
amounts as Landlord may reasonably require, naming Landlord, Landlord's managing
agent, and their respective employees and agents, any Lessor and any Mortgagee
as additional insureds and (iv) furnish to Landlord such other evidence of
Tenant's ability to complete and to fully pay for such Alterations as is
reasonably satisfactory to Landlord. Upon Tenant's request, Landlord shall
reasonably cooperate with Tenant in obtaining any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (if the provisions of the applicable Requirement require that
Landlord join in such application), provided Landlord shall incur no cost,
expense or liability in connection therewith.
(c) If Landlord shall fail to approve or disapprove Tenant's plans and
specifications for the Initial Alterations within ten Business Days after the
initial submission of such plans and specifications or within five Business Days
after any resubmission of disapproved plans and specifications or if Landlord
shall fail to approve or disapprove Tenant's final plans and specifications for
any other Alteration within fifteen Business Days after the initial submission
of the plans and specifications or within ten days after any resubmission of
disapproved plans and specifications, each such time
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period running from the date of Landlord's receipt thereof, Landlord shall be
deemed to have approved such plans and specifications.
(d) Landlord shall use its commercially reasonable efforts to cure any
then existing violations of applicable Requirements existing on the date hereof
or applicable Requirements existing hereafter to the extent Landlord is
obligated to comply therewith under Article 9 within the Building, which
violations preclude Tenant from obtaining any permits or licenses necessary for
it to make the Initial Alterations or subsequent alterations, whether any such
violation is the result of an act or omission of Landlord or a tenant in the
Building (other than a violation caused by Tenant, its agents or contractors or
resulting from or in connection with Tenant's Alterations), provided, however,
that (i) Landlord shall have no obligation to declare another tenant in default
under any lease between such tenant and Landlord and (ii) Tenant's sole remedy
in the event of Landlord's failure to use such commercially reasonable efforts
shall be an action or proceeding to enforce Landlord's obligation to use such
commercially reasonable efforts or for specific performance, injunction or
declaratory judgment other than monetary damages in any such case unless it
shall be judicially determined that Landlord is acting maliciously or in bad
faith in failing to cure any such violation in which case Tenant shall be
entitled to pursue its remedies at law or in equity, including monetary damages.
For the purposes of this Section 5.1(d) "commercially reasonable efforts" shall
include the enforcement by Landlord of its rights against any tenant that caused
any such violation of applicable Requirements within the Building where such
tenant is required to cure such violation pursuant to the terms of its lease
with Landlord, including diligently and in good faith commencing and prosecuting
appropriate litigation, and/or performance by Landlord of the obligation of a
tenant to cure any such violation of applicable Requirements within the Building
where such tenant fails to perform such obligation and where Landlord is
entitled pursuant to the terms of the lease between Landlord and such tenant to
perform such obligation on behalf of such tenant. Except as otherwise expressly
set forth herein, Landlord shall have no liability with respect to its failure
to cure any violation referred to above which precluded Tenant from obtaining
any such permits or licenses.
(e) Upon completion of any Alterations, Tenant, at its expense, shall
promptly obtain certificates of final approval of such Alterations required by
any Governmental Authority and shall furnish Landlord with copies thereof,
together with "as-built" plans and specifications for such Alterations.
Section 5.2 MANNER AND QUALITY OF ALTERATIONS. (a) All Alterations shall be
performed (i) in a good and workmanlike manner and free from defects, (ii) in
accordance with the plans and specifications, and by contractors approved by
Landlord, which approval shall not be unreasonably withheld, (iii) under the
supervision of a licensed architect reasonably satisfactory to Landlord other
than Alterations of a decorative nature, and (iv) in compliance with all
Requirements, the terms of this Lease, all procedures and regulations then
prescribed by Landlord for coordinating all work performed in the Building and
the Rules and Regulations. All materials and equipment to be used in the
Premises shall be first quality at least equal to the standards for the
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Building then established by Landlord, and no such materials or equipment (other
than Tenant's Property) shall be subject to any lien or other encumbrance. At
Tenant's request, Landlord shall furnish Tenant with a list of contractors
(containing at least three contractors for each trade) approved by Landlord who
may perform on behalf of Tenant the types of Alterations described on such
request. If Tenant engages any contractor set forth on such list, Tenant shall
not be required to obtain Landlord's consent to such contractor unless, prior to
the execution of an agreement between Tenant (either directly or through another
contractor or subcontractor) and such contractor (or, if no written agreement is
entered into, prior to the commencement of work by the contractor), Landlord
shall notify Tenant that such contractor has been removed from such list. Such
list shall be deemed to include any two of Lehrer McGovern Bovis, Inc., Quality
Group Construction Company and Sweet Construction Company.
(b) Notwithstanding the foregoing, with respect to any Alteration
affecting any Building System, Landlord may withhold its approval, in its sole
discretion, of any proposed contractor not set forth on any list of approved
contractors furnished by Landlord to Tenant (containing at least three
contractors with respect to each Building System other than the Class E life
safety system and Landlord's energy management system) upon Tenant's request.
With respect to any Alterations affecting the Class E life safety system or
Landlord's energy management system, Landlord may withhold its approval, in its
sole discretion, of any contractor other than Fire Service Inc. (with respect to
Landlord's energy management system) and Carrier Corporation (with respect to
Landlord's energy management system) or any contractor which has replaced Fire
Service Inc. or Carrier Corporation, as the case may be, as Landlord's
contractor with respect to the applicable Building System.
Section 5.3 TENANT'S PROPERTY. All Alterations and Tenant's Property shall
be and remain the property of Tenant and Tenant may, at any time on or before
the Expiration Date, remove the same; provided, however, that Tenant, at
Tenant's expense, shall remove any of Tenant's Alterations which are not
standard office or showroom installations. Tenant shall repair and restore, in a
good and workmanlike manner, any damage to the Premises or the Building caused
by Tenant's removal of any Alterations and/or Tenant's Property, and upon
default thereof, Tenant shall reimburse Landlord, on demand, for Landlord's cost
of repairing such damage. Any Alterations or Tenant's Property not so removed
shall be deemed abandoned and Landlord may remove and dispose of same, and
repair any damage caused thereby, at Tenant's cost and without accountability to
Tenant. This Section 5.3 shall survive the expiration or earlier termination of
this Lease.
Section 5.4 MECHANIC'S LIENS. Tenant, at its expense, shall discharge any
lien or charge filed against the Premises or the Real Property for work claimed
to have been done for, or materials claimed to have been furnished to, Tenant,
within 30 days after Tenant's receipt of notice thereof by payment, filing the
bond required by law or otherwise in accordance with law.
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Section 5.5 LABOR RELATIONS. Tenant shall not knowingly employ, or permit
the employment of, any contractor, mechanic or laborer, or knowingly permit any
materials to be delivered to or used in the Building, if, in Landlord's sole
judgment, such employment, delivery or use will interfere or cause any conflict
with other contractors, mechanics or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others, or the
use and enjoyment of other Building tenants or occupants. In the event of such
interference or conflict, upon Landlord's request, Tenant shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
Section 5.6 TENANT'S COSTS. Tenant shall pay to Landlord within 15 days
after rendition of a bill therefor all out-of-pocket costs actually incurred by
Landlord in connection with Tenant's Alterations (including the Initial
Alterations), such as costs incurred in connection with (i) Landlord's review of
the Alterations (including review of requests therefor) and (ii) the provision
of Building trade personnel required by trade union policy or otherwise, to
operate elevators or other equipment, during the performance of any Alterations.
In addition, Tenant shall pay to Landlord, within 15 days after rendition of a
statement therefor, an amount equal to the aggregate of 5 percent of the total
cost up to and including $15,000 (but in no event more than $750) of any
Alterations on account of Landlord's supervision of the performance of such
Alterations and scheduling of Building equipment, facilities and personnel in
connection with any Alterations, provided, however, that Tenant shall have no
obligation to pay any such fee in connection with the Initial Alterations.
Section 5.7 TENANT'S EQUIPMENT. Tenant shall not move any heavy machinery,
heavy equipment, heavy freight, bulky matter or heavy fixtures (collectively,
"Equipment") into or out of the Building without Landlord's prior consent and
payment to Landlord of any costs incurred by Landlord in connection therewith.
If such Equipment requires special handling, Tenant agrees (i) to employ only
persons holding a Master Rigger's License to perform such work, (ii) all work
performed in connection therewith shall comply with all applicable Requirements
and (iii) such work shall be done only during hours designated by Landlord.
Tenant shall indemnify and hold Landlord harmless from and against all damages
sustained by persons or property and all monies paid out by Landlord in
settlement of any claims or judgments (including all expenses and attorneys'
fees incurred in connection therewith) and all costs incurred in repairing any
damage to the Building or appurtenances. The agreements set forth in this
Section 5.7 shall survive the expiration or earlier termination of this Lease.
Section 5.8 LEGAL COMPLIANCE. The approval of plans or specifications or
consent by Landlord to the making of any Alterations does not constitute
Landlord's agreement or representation that such plans and specifications or any
Alterations comply with any Requirements and/or with the certificate of
occupancy issued for the Building. Landlord shall have no liability to Tenant or
any other party in connection with Landlord's approval of any plans and
specifications or consent to the making of any Alterations.
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Section 5.9 LANDLORD'S WORK. (a) Landlord shall at its own expense in a
good and workmanlike manner, free and clear of any liens, perform the work
described in Exhibit C hereto (collectively, "Landlord's Work") and obtain any
permits, approvals and certificates required by any Governmental Authorities in
connection therewith, subject to the same proviso contained in Section
4.2(a)(iii). Landlord shall, subject to Unavoidable Delay, use reasonable
efforts to complete by the dates specified in Exhibit C Landlord's Work as soon
as practical after the later of the Commencement Date, the delivery of vacant
possession of the applicable floor and the obtaining of the approval and the
SNDA (or the waiver thereof) contemplated by Sections 10.5 and 10.6. Tenant
agrees to reimburse Landlord for one-half of the cost, but not to exceed
$115,000, of removing any vinyl asbestos-containing floor tiles from the
Premises 15 days after Landlord furnishes Tenant with a statement therefor
following completion thereof.
(b) Tenant agrees to provide Landlord and its agents, contractors,
subcontractors and employees access to the Premises at all times to perform
Landlord's Work and Tenant and Landlord agree to cooperate and cause their
agents, contractors and subcontractors to cooperate so as to minimize to the
extent practicable any interference with the performance of Landlord's Work and
Tenant's Alterations.
(c) Landlord may, from time to time, notify Tenant that it has
substantially completed one or more items of Landlord's Work. Tenant may, within
10 Business Days after delivery of such notice, identify to Landlord any portion
of such item of Landlord's Work not so completed and Landlord shall
substantially complete any items so identified by Tenant within a reasonable
period of time after Tenant shall notify Landlord of same. If Tenant shall not
so identify any incomplete work within such time period, such item of Landlord's
Work shall be deemed substantially completed.
Section 5.10 STAIRCASE AND ACCESS. Tenant shall have the right, subject, as
to specific location and manner of installation, to the terms of Sections 5.1,
5.2 and 5.5, to construct an internal staircase penetrating the floors of the
Premises on the 21st, 22nd and 23rd floors of the Building. Landlord shall
provide Tenant with reasonable access under the supervision of Landlord to the
ceiling of the 19th floor of the Building in order to perform non-structural
plumbing Alterations, subject to the rights of tenants occupying such floor, not
interfering with the design of the space of such tenants and the provisions of
this Article.
ARTICLE 6
FLOOR LOAD
----------
Section 6.1 FLOOR LOAD. Tenant shall not place a load upon any floor of the
Premises that exceeds 60 pounds per square foot "live load". Landlord reserves
the right to reasonably prescribe the weight and position of all Equipment which
Tenant wishes to place within the Premises. Tenant shall have the right to
reinforce the floor slabs of the 21st, 22nd and 23rd floors of the Premises
subject to the provisions of Article 5.
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ARTICLE 7
REPAIRS
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Section 7.1 LANDLORD'S REPAIR AND MAINTENANCE. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (i) the Building Systems up to
the point of connection to the Premises, and (ii) the public portions of the
Building, both exterior and interior, and all structural elements of the
Building, including the roof, roof structure, foundation and walls, in
conformance with standards applicable to first-class renovated office buildings
of comparable age and quality in the vicinity of the Building.
Section 7.2 TENANT'S REPAIR AND MAINTENANCE. Tenant shall promptly, at its
expense and in compliance with Article 5 of this Lease, (i) make all
nonstructural repairs to the Premises and the fixtures, equipment and
appurtenances therein (including Tenant's supplemental HVAC system and
sprinklers and the horizontal distribution systems within and servicing the
Premises and by which mechanical, electrical, heating, ventilating,
air-conditioning, plumbing, sanitary, life-safety and other utility and service
systems are distributed from the base Building risers, feeders, panelboards,
etc. for provision of such services to the Premises) as and when needed to
preserve the Premises in good working order and condition, except for reasonable
wear and tear and damage for which Tenant is not responsible, and (ii) replace
damaged doors and signs in and about the Premises. Without limiting the
foregoing, all damage to the Premises or to any other part of the Building, or
to any fixtures, equipment, sprinkler system and/or appurtenances thereof,
whether requiring structural or nonstructural repairs, caused by or resulting
from any act, omission, neglect or improper conduct of, or Alterations made by,
or the moving of Tenant's fixtures, furniture or equipment into or out of the
Premises by Tenant, Tenant's agents, employees, invitees or licensees, and all
damage to any portion of the Building's Systems existing in the Premises, shall
be repaired at Tenant's expense. Such repairs shall be made by (a) Tenant, if
the required repairs are nonstructural in nature and do not affect any Building
System and/or if any damaged portion of the sprinkler system is contained within
the Premises, or (b) Landlord, if the required repairs are structural in nature
or affect any Building System or any portion of the sprinkler system not
contained within the Premises. All Tenant repairs shall be of a quality at least
equal to the original work or construction but utilizing new construction
materials and shall be made in accordance with this Lease. Tenant shall give
Landlord prompt notice of any defective condition of which Tenant is aware in
any Building System located in, servicing or passing through the Premises. If
Tenant fails after 15 days' notice (or such shorter period as may be required in
an emergency) to proceed with due diligence to make any repairs required to be
made by Tenant, Landlord may make such repairs and all expenses incurred by
Landlord on account thereof, plus interest thereon at the Interest Rate, shall
be paid by Tenant within 15 days after Landlord delivers to Tenant an invoice
therefor. Notwithstanding the above but subject to the terms of Articles 11, 12,
13, 16 and 32 and other express provisions herein contained, Landlord shall not
be relieved from responsibility directly to Tenant for any loss or damage (other
than consequential
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damages, with respect to which Landlord shall have no responsibility whatsoever)
caused directly to Tenant (other than to Tenant's property, with respect to
which Landlord shall have no responsibility whatsoever except as otherwise
expressly provided for herein) wholly or in part by the negligent acts or
omissions of Landlord, its agents, employees and contractors. Nothing in the
foregoing shall affect any right of Landlord to the indemnity from Tenant to
which Landlord may be entitled under Article 32 in order to recoup for payments
made to compensate for losses of third parties.
Section 7.3 VERMIN. Tenant shall, at its expense, cause the Premises to be
exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation, to Landlord's reasonable satisfaction, by
licensed exterminators approved by Landlord.
Section 7.4 INTERRUPTIONS DUE TO REPAIRS. Landlord shall use reasonable
efforts to minimize interference with Tenant's use and occupancy of the Premises
in the making of any repairs, alterations, additions or improvements, provided
that Landlord shall have no obligation to employ contractors or labor at
"overtime" or other premium pay rates or to incur any other "overtime" costs or
additional expenses whatsoever, except that Landlord, at its expense (but
subject to recoupment pursuant to Article 8 hereof), shall employ contractors or
labor at so-called overtime or other premium pay rates if necessary to make any
repair required to be made by it hereunder to remedy any condition that (i)
results in a denial of access to the Premises, (ii) threatens the health or
safety of any occupant of the Premises, or (iii) except in the case of casualty,
materially interferes with Tenant's ability to conduct its business in the
Premises. In all other cases, at Tenant's request and expense, Landlord shall
employ contractors or labor at so-called overtime or other premium pay rates and
incur any other overtime costs or expenses in making any repairs, alterations,
additions or improvements. There shall be no allowance to Tenant for a
diminution of rental value, no constructive eviction of Tenant and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord, Tenant or others making, or failing to make, any
repairs, alterations, additions or improvements in or to any portion of the
Building or the Premises, or in or to fixtures, appurtenances or equipment
therein.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
-----------------------------------------
Section 8.1 DEFINITIONS. For the purposes of this Article 8, the following
terms shall have the meanings set forth below:
(a) "TAXES" shall mean (i) all real estate taxes, assessments, sewer
and water rents, rates and charges and other governmental levies, impositions or
charges, whether general, special, ordinary, extraordinary, foreseen or
unforeseen, which may be assessed, levied or imposed upon all or any part of the
Real Property, and (ii) all expenses (including reasonable attorneys' fees and
disbursements and experts' and other witnesses' fees) incurred in contesting any
of the foregoing or the Assessed Valuation of all or any
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part of the Real Property. Taxes shall not include (x) interest or penalties
incurred by Landlord as a result of Landlord's late payment of Taxes, except for
interest payable in connection with the installment payment of assessments
pursuant to the next sentence or (y) franchise, inheritance or net income taxes
imposed upon Landlord. If Landlord elects to pay any assessment in annual
installments, then for the purposes of this Article 8, (i) such assessment shall
be deemed to have been so divided and to be payable in the maximum number of
installments permitted by law, and (ii) there shall be deemed included in Taxes
for each Comparison Year the installments of such assessment becoming payable
during such Comparison Year, together with interest payable during such
Comparison Year on such installments and on all installments thereafter becoming
due as provided by law, all as if such assessment had been so divided. If at any
time the methods of taxation prevailing on the date hereof shall be altered so
that in lieu of or as an addition to the whole or any part of Taxes, there shall
be assessed, levied or imposed (1) a tax, assessment, levy, imposition or charge
based on the income or rents received from the Real Property whether or not
wholly or partially as a capital levy or otherwise, (2) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon all or any
part of the Real Property and imposed upon Landlord, (3) a license fee measured
by the rents, or (4) any other tax, assessment, levy, imposition, charge or
license fee however described or imposed, then all such taxes, assessments,
levies, impositions, charges or license fees or the part thereof so measured or
based shall be deemed to be Taxes (as evidenced by either the terms of the
legislation imposing such tax or assessment or the legislative history thereof
or other documents or evidence which reasonably demonstrate that such taxes were
intended to serve as real estate taxes or fulfill substantially the same
function as existing real estate taxes), provided that any tax, assessment,
levy, imposition or charge imposed on income from the Real Property shall be
calculated as if the Real Property were the only asset of Landlord.
(b) "ASSESSED VALUATION" shall mean the amount for which the Real
Property is assessed pursuant to applicable provisions of the City Charter and
of the Administrative Code of the City of New York for the purpose of imposition
of Taxes.
(c) "TAX YEAR" shall mean the twelve month period from July 1 through
June 30 (or such other period as hereinafter may be duly adopted by the City of
New York as its fiscal year for real estate tax purposes).
(d) "BASE TAXES" shall mean an amount equal to the Taxes payable on
account of the Base Tax Year.
(e) "TENANT'S PROJECTED SHARE OF TAXES" shall mean Tenant's Tax
Payment, if any, for the prior Comparison Year, plus an amount equal to
Landlord's estimate of the amount of increase in Tenant's Tax Payment projected
for the current Comparison Year, divided by 12 and payable monthly as Additional
Rent.
(f) "COMPARISON YEAR" shall mean (a) with respect to Taxes, any Tax
Year commencing subsequent to the first day of the Base Tax Year, and (b) with
respect
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to Operating Expenses, any calendar year commencing subsequent to the first day
of the Base Expense Year.
(g) "OPERATING EXPENSES" shall mean the aggregate of all costs and
expenses (and taxes, if any, thereon) paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) in connection
with the ownership, operation, repair and maintenance of the Building and the
Real Property, such as: (i) insurance premiums, (ii) the cost of electricity
furnished to the public and common areas of the Building (including, without
limitation, Building Systems) and other areas not available for occupancy, gas,
oil, steam, water, air conditioning and other fuel and utilities, (iii)
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, and (iv) any capital improvement as described in
items (1) or (2) below which shall be installed by Landlord in the Building.
Such improvements shall be amortized on a straight-line basis over such period
as Landlord shall reasonably determine (with interest accruing on the
unamortized portion thereof at the Base Rate in effect at the time such
improvements are substantially completed per annum), and the amount included in
Operating Expenses in any Comparison Year (until such improvement has been fully
amortized) shall be equal to the annual amortized amount. A capital improvement
shall be included in Operating Expenses only if it either (1) results in a
reduction in Operating Expenses (as for example, a labor-saving improvement),
provided, the amount included in Operating Expenses in any Comparison Year shall
not exceed an amount equal to the savings resulting from the installation and
operation of such improvement, and/or (2) is made during any Comparison Year in
compliance with Requirements enacted or imposed after the date of this Lease
(including the interpretation, amendment or modification after the date of this
Lease of Requirements enacted or imposed prior to the date of this Lease).
Operating Expenses shall not include any Excluded Expenses. If during all or
part of the Base Expense Year or any Comparison Year, Landlord shall not furnish
any particular item(s) of work or service (which would otherwise constitute an
Operating Expense) to any leasable portions of the Building for any reason,
then, for purposes of computing Operating Expenses for the Base Expense Year or
any Comparison Year, as the case may be, the amount included in Operating
Expenses for such period shall be increased by an amount equal to the costs and
expenses that would have been reasonably incurred by Landlord during such period
if Landlord had furnished such item(s) of work or service to such portion of the
Building. In determining the amount of Operating Expenses for the Base Expense
Year or any Comparison Year, if less than 95 percent of the Building rentable
area shall have been occupied by tenant(s) at any time during any such Base
Expense Year or Comparison Year, Operating Expenses shall be determined for such
Base Expense Year or Comparison Year to be an amount equal to the like expenses
which would normally be expected to be incurred had such occupancy been 95
percent throughout such Base Expense Year or Comparison Year.
(h) "BASE OPERATING EXPENSES" shall mean the Operating Expenses for the
Base Expense Year.
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(i) "STATEMENT" shall mean a statement containing a comparison of (1)
the Taxes payable for the Base Tax Year and the Taxes payable for any Comparison
Year, or (2) the Base Operating Expenses and the Operating Expenses payable for
any Comparison Year.
Section 8.2 TENANT'S TAX PAYMENT. (a) If the Taxes payable for any
Comparison Year exceed the Base Taxes, Tenant shall pay to Landlord Tenant's
Proportionate Share of such excess ("Tenant's Tax Payment"). On or about the
start of each Comparison Year, Landlord shall furnish to Tenant a Statement of
the Taxes setting forth the dates on which Landlord is obligated under law or to
a Mortgagee or Lessor to pay Taxes in respect of such Comparison Year (the "Tax
Payment Dates"), with the percentage of Taxes payable on each Tax Payment Date.
Tenant shall pay to Landlord thirty days before each Tax Payment Date the same
percentage of Tenant's Tax Payment payable for such Comparison Year as shown on
such Statement as the percentage of Taxes for such Comparison Year payable by
Landlord on such Tax Payment Date. In no event shall Tenant be obligated to make
any payment of Tenant's Tax Payment sooner than ten days after receipt by Tenant
of the relevant Statement. If there is any increase or decrease in Taxes payable
for any Comparison Year, whether levied during or after such Comparison Year,
Landlord may furnish a revised Statement for such Comparison Year, Tenant's Tax
Payment for such Comparison Year shall be adjusted and, within 10 business days
after Tenant's receipt of such revised Statement (a) with respect to any
increase in Taxes payable for such Comparison Year, Tenant shall pay such
increase in Tenant's Tax Payment to Landlord, or (b) with respect to any
decrease in Taxes payable for such Comparison Year, Landlord shall credit such
decrease in Tenant's Tax Payment against the next installment of Rent payable by
Tenant. If, during the Term, Landlord elects to collect Tenant's Tax Payments,
in full or in installments on any date or dates other than as presently
required, then following Landlord's notice to Tenant, Tenant's Tax Payments
shall be correspondingly revised.
(b) If the applicable real estate tax fiscal year is changed, Taxes for
such fiscal year shall be apportioned on the basis of the number of days in such
fiscal year included in the particular Comparison Year for the purpose of making
the computations under this Section.
(c) Only Landlord shall be eligible to institute proceedings to reduce
the Assessed Valuation of the Real Property and the filings of any such
proceeding by Tenant without Landlord's prior written consent shall constitute
an Event of Default. If the Taxes payable for the Base Tax Year are reduced, the
Base Taxes shall be correspondingly revised, the Additional Rent previously paid
or payable on account of Tenant's Tax Payment hereunder for all Comparison Years
shall be recomputed on the basis of such reduction, and Tenant shall pay to
Landlord within 10 business days after being billed therefor, any deficiency
between the amount of such Additional Rent previously computed and paid by
Tenant to Landlord, and the amount due as a result of such recomputations. If
the Taxes payable for the Base Tax Year are increased then Landlord shall either
pay to Tenant, or at Landlord's election, credit against subsequent payments of
Rent due, the amount by which such Additional Rent previously paid on
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account of Tenant's Tax Payment exceeds the amount actually due as a result of
such recomputations. If Landlord receives a refund of Taxes for any Comparison
Year, Landlord shall, at its election, either pay to Tenant, or credit against
subsequent payments of Rent due hereunder, an amount equal to Tenant's
Proportionate Share of the refund, net of any expenses incurred by Landlord in
achieving such refund, which amount shall not exceed Tenant's Tax Payment paid
for such Comparison Year. Landlord shall not be obligated to file any
application or institute any proceeding seeking a reduction in Taxes or the
Assessed Valuation.
(d) Tenant shall be obligated to make Tenant's Tax Payment regardless
of whether Tenant may be exempt from the payment of any taxes by reason of
Tenant's diplomatic or other tax exempt status.
(e) If the Expiration Date shall occur on a date other than June 30,
any Additional Rent payable by Tenant to Landlord under this Section 8.2 for the
Comparison Year in which such Expiration Date occurs shall be apportioned on the
basis of the number of days in the period from June 30 to the Expiration Date
shall bear to the total number of days in such Comparison Year. In the event of
the expiration or earlier termination of this Lease, any Additional Rent under
this Section 8.2 shall be paid or adjusted within 30 days after submission of
the Statement. In no event shall Fixed Rent ever be reduced by operation of this
Section 8.2 and the rights and obligations of Landlord and Tenant under the
provisions of this Section 8.2 with respect to any Additional Rent shall survive
the expiration or earlier termination of this Lease.
(f) Tenant shall be responsible for any applicable occupancy or rent
tax now in effect or hereafter enacted and, if payable by Landlord, Tenant shall
promptly pay such amounts to Landlord, upon Landlord's demand, as Additional
Rent
(g) Landlord represents that as of the date hereof, the Landlord is not
entitled to any tax abatement in respect of the Building.
Section 8.3 TENANT'S OPERATING PAYMENT. (a) If the Operating Expenses
payable for any Comparison Year exceed the Base Operating Expenses, Tenant shall
pay to Landlord Tenant's Proportionate Share of such excess ("Tenant's Operating
Payment"). For each Comparison Year, Landlord shall furnish to Tenant a written
statement setting forth Landlord's good faith reasonable estimate of Tenant's
Operating Payment for such Comparison Year, based upon such year's budget.
Tenant shall pay to Landlord on the first day of each month during such
Comparison Year an amount equal to one-twelfth of Landlord's estimate of
Tenant's Operating Payment for such Comparison Year. If, however, Landlord shall
furnish any such estimate for a Comparison Year subsequent to the commencement
thereof, then (a) until the first day of the month following the month in which
such estimate is furnished to Tenant, Tenant shall pay to Landlord on the first
day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 8.3 during the last month of the preceding
Comparison Year, (b) promptly after such estimate is furnished to Tenant or
together therewith, Landlord shall give notice to Tenant stating whether the
installments
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of Tenant's Operating Payment previously made for such Comparison Year were
greater or less than the installments of Tenant's Operating Payment to be made
for such Comparison Year in accordance with such estimate, and (i) if there
shall be a deficiency, Tenant shall pay the amount thereof within 10 business
days after demand therefor, or (ii) if there shall have been an overpayment,
Landlord shall credit the amount thereof against subsequent payments of Rent due
hereunder, and (c) on the first day of the month following the month in which
such estimate is furnished to Tenant, and on the first day of each month
thereafter throughout the remainder of such Comparison Year, Tenant shall pay to
Landlord an amount equal to one-twelfth of Tenant's Operating Payment shown on
such estimate.
(b) On or before May 1st of each comparison Year, Landlord shall
furnish to Tenant a Statement for the immediately preceding Comparison Year.
Each such Statement shall be accompanied by a computation of Operating Expenses
for the Building prepared by Landlord's managing agent. If the Statement shall
show that the sums paid by Tenant under Section 8.3(a) exceeded the actual
amount of Tenant's Operating Payment for such Comparison Year, Landlord shall
credit the amount of such excess against subsequent payments of Rent due
hereunder. If the 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 10 business days
after Tenant's receipt of the Statement.
(c) If the Expiration Date shall occur on a date other than December
31, any Additional Rent under this Section 8.3 for the Comparison Year in which
such Expiration Date shall occur shall be apportioned on the basis of the number
of days in the period from January 1 to the Expiration Date. Upon the expiration
or earlier termination of this Lease, any Additional Rent under this Article 8
shall be paid or adjusted within 30 days after submission of the Statement. In
no event shall Fixed Rent ever be reduced by operation of this Section 8.3 and
the rights and obligations of Landlord and Tenant under the provisions of this
Section 8.3 with respect to any Additional Rent shall survive the expiration or
earlier termination of this Lease.
Section 8.4 FORMULA. The computations of Additional Rent under this Article
8 are intended to constitute a formula for an agreed rental adjustment and may
or may not constitute an actual reimbursement to Landlord for Taxes, costs and
expenses paid by Landlord with respect to the Building.
Section 8.5 NON-WAIVER; DISPUTES. (a) Landlord's failure to render any
Statement on a timely basis with respect to any Comparison Year shall not
prejudice Landlord's right to thereafter render a Statement with respect to such
Comparison Year or any subsequent Comparison Year (but not to exceed two years
after such Year), nor shall the rendering of a Statement prejudice Landlord's
right to thereafter render a corrected Statement for that Comparison Year.
Nothing in the preceding sentence to the contrary shall preclude Landlord from
submitting to Tenant for payment and collecting from Tenant any amount owed in
respect of an earlier Comparison Year that is billed to and paid for by Landlord
within such two year period.
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(b) Each Statement sent to Tenant shall be conclusively binding upon
Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay
to Landlord the amount set forth in such Statement, without prejudice to
Tenant's right to dispute such Statement, and (ii) within 90 days after such
Statement is sent, send a written notice to Landlord objecting to such Statement
and specifying the reasons that such Statement is claimed to be incorrect. If
such notice is sent, Tenant (together with its accountants) may examine
Landlord's books and records during normal business hours relating to the
operation of the Real Property or the payment of Taxes to determine the accuracy
of any Statement. If after such examination, Tenant still disputes such
Statement, either party may refer the issues raised to an independent firm of
certified public accountants selected by Landlord and reasonably acceptable to
Tenant, and the decision of such accountants shall be conclusively binding upon
Landlord and Tenant. In connection therewith, Tenant and/or such accountants
shall execute and deliver to Landlord a confidentiality agreement, in form and
substance reasonably satisfactory to Landlord, whereby such parties agree not to
disclose to any third party any of the information obtained in connection with
such examination. The fees and expenses relating to such procedure shall be
borne by the unsuccessful party (and if both parties are partially unsuccessful,
the accountants shall apportion the fees and expenses between the parties based
on the degree of success of each party). Landlord shall pay Tenant any amount it
owes Tenant under this Section 8.5(b) within fifteen days after any resolution
thereof hereunder. If such accountants shall determine that any Statement is
inaccurate as a whole by 5 percent or more, then Tenant shall have the right,
notwithstanding the foregoing to the contrary, to examine any Statement rendered
to it during the 12 month period immediately preceding the date of the disputed
Statement.
(c) The expiration or termination of this Lease during any Comparison
Year or Tax Year, as the case may be, shall not affect the rights or obligations
of the parties hereto respecting any payments or refunds due hereunder and any
Statement, on a pro rata basis, may be sent to Tenant subsequent to, and all
such rights and obligations shall survive, any such expiration or termination.
Any payments due under such Statement shall be payable within ten days after
such Statement is sent to Tenant and any refunds due hereunder shall be payable
within ten days after receipt by Landlord.
ARTICLE 9
REQUIREMENTS OF LAW
-------------------
Section 9.1 (a) TENANT'S COMPLIANCE. Tenant, at its expense and in
accordance with Article 5 of this Lease, shall comply (or cause to be complied
with) all Requirements applicable to the Premises whether initially imposed upon
Landlord or Tenant, except that Tenant shall not be under any obligation to
comply with any Requirement applicable to the mere general "office" use (as
opposed to any particular use of Tenant, which particular use includes any
Permitted Use other than office use) of the Premises. Tenant shall make all
repairs and alterations, whether structural or nonstructural, ordinary or
extraordinary, arising as a result of (i) the specific manner and nature of use
or occupancy by Tenant, or (ii) Alterations made by Tenant in the Premises.
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If Tenant obtains knowledge of any failure to comply with any Requirements
applicable to the Premises, Tenant shall give Landlord prompt written notice
thereof.
(b) HAZARDOUS MATERIALS. Tenant shall be responsible, at its expense,
for all matters directly or indirectly based on, or arising or resulting from
the actual or alleged presence of Hazardous Materials on the Premises or in the
Building which is caused or permitted by Tenant. Tenant shall provide to
Landlord copies of all communications received by Tenant with respect to any
Requirements relating to Hazardous Materials, and/or any claims made in
connection therewith. Landlord or its agents may perform environmental
inspections of the Premises at any time.
(c) LANDLORD'S COMPLIANCE. Landlord shall comply with (or cause to be
complied with) all Requirements applicable to the Building which are not the
obligation of Tenant, to the extent that non-compliance would impair Tenant's
use and occupancy of the Premises and Tenant's ability to conduct its business
in the Premises for any Permitted Use and the cost thereof shall be included in
Operating Expenses pursuant to Section 8.1(g) of this Lease.
(d) LANDLORD'S INSURANCE. Tenant shall not cause or permit any action
or condition that would (i) invalidate or conflict with Landlord's insurance
policies, (ii) violate applicable rules, regulations and guidelines of the Fire
Department, Fire Insurance Rating Organization or any other authority having
jurisdiction over the Building, or (iii) cause an increase in the rate of fire
insurance then on the Building over that in similar type buildings. If the fire
insurance rates increase as a result of Tenant's failure to comply with the
provisions of this Article, Tenant shall promptly cure such failure and shall
reimburse Landlord, as Additional Rent, for the increased fire insurance
premiums paid by Landlord because of such failure by Tenant. In any action or
proceeding which Landlord and Tenant are parties, a schedule or "make up" of
rates for the Building or the Premises issued by the appropriate Fire Insurance
Rating Organization, or other body fixing such fire insurance rates, shall be
conclusive evidence of the fire insurance rates then applicable to the Building.
Section 9.2 SPRINKLERS. If the Fire Insurance Rating Organization or any
Governmental Authority or any of Landlord's insurers requires or recommends any
modifications and/or Alterations be made or any additional equipment be supplied
in connection with the sprinklers serving the Building or the Premises by reason
of Tenant's business, or the location of the partitions, trade fixtures, or
other contents of the Premises, Landlord (to the extent outside of the Premises)
or Tenant (to the extent within the Premises) shall make such modifications
and/or Alterations, and supply such additional equipment, in either case at
Tenant's expense.
Section 9.3 LIMITATIONS ON RENT. If at any time during the Term by reason
of any Requirement, the Rent is not fully collectible, Tenant shall 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 during the continuance of such restriction be legally permissible (but
not in excess of the Rent
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reserved under this Lease). Upon the termination of such restriction during the
Term, Tenant shall pay to Landlord, in addition to the Rent for the period
following such termination of the restriction, if legally permissible, the
portion of Rent which would have been paid pursuant to this Lease but for such
legal restriction less the Rent paid by Tenant to Landlord while such
restriction was in effect.
ARTICLE 10
SUBORDINATION
-------------
Section 10.1 (a) SUBORDINATION AND ATTORNMENT. This Lease is subject and
subordinate to all Mortgages and Superior Leases, and, at the request of any
Mortgagee or Lessor, Tenant shall attorn to such Mortgagee or Lessor, its
successors in interest or any purchaser in a foreclosure sale.
(b) If a Lessor or Mortgagee or any person or entity shall succeed to
the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, then at the request of
the party succeeding to Landlord's rights and upon such successor landlord's
written agreement to accept Tenant's attornment and to recognize Tenant's
interest under this Lease, Tenant shall be deemed to have attorned to and
recognized such successor landlord as the Landlord under this Lease. The
provisions of this Article are self-operative requiring no further instruments
to give effect thereto; provided, however, that Tenant shall promptly execute
and deliver any instrument that such successor landlord may reasonably request
(i) evidencing such attornment, (ii) setting forth the terms and conditions of
Tenant's tenancy, and (iii) containing such other terms and conditions as may be
required by such Mortgagee or Lessor, provided such terms and conditions do not
increase the monetary obligations of Tenant under this Lease or increase
Tenant's other obligations or adversely affect the rights of Tenant under this
Lease in any case other than to a de minimis extent. Upon such attornment this
Lease shall continue in full force and effect as a direct lease between such
successor landlord and Tenant upon all of the terms, conditions and covenants
set forth in this Lease except that such successor landlord shall not:
(i) be liable for any act or omission of Landlord (except to
the extent such act or omission continues beyond the date when such successor
landlord succeeds to Landlord's interest and Tenant gives notice of such act or
omission);
(ii) be subject to any defense, counterclaim, set-off or
offsets which Tenant may have against Landlord;
(iii) be bound by any prepayment of more than one month's Rent
to any prior landlord;
(iv) be bound by any obligation to make any payment to Tenant
which was required to be made prior to the time such successor landlord
succeeded to Landlord's interest;
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(v) be bound by any obligation to perform any work or to make
improvements to the Premises except for (x) repairs and maintenance pursuant to
the provisions of this Lease, and (y) repairs to the Premises as a result of
damage by fire or other casualty or a partial condemnation pursuant to the
provisions of this Lease, but only to the extent that such repairs can
reasonably be made from the net proceeds of any insurance or awards,
respectively, actually made available to such successor landlord; or
(vi) be bound by any modification, amendment or renewal (other
than pursuant to Article 37) of this Lease made without successor landlord's
consent.
Section 10.2 MORTGAGE AND/OR SUPERIOR LEASE DEFAULTS. Tenant shall not
knowingly cause a default under any Superior Lease or Mortgage, or omit to do
anything that Tenant is obligated to do under the terms of this Lease so as to
cause Landlord to be in default thereunder. Any Mortgagee may elect that this
Lease shall have priority over the Mortgage that it holds and, upon notification
to Tenant by such Mortgagee, this Lease shall be deemed to have priority over
such Mortgage, regardless of the date of this Lease. In connection with the
financing of the Real Property, the Building or the interest of the lessee under
any Superior Lease, Tenant shall consent to any reasonable modifications of this
Lease requested by any lending institution provided such modifications do not
increase the monetary obligations of Tenant under the Lease, increase Tenant's
other obligations, or adversely affect the rights, of Tenant under this Lease in
any case other than to a de minimis extent.
Section 10.3 TENANT'S TERMINATION RIGHT. 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 (i) until Tenant shall have given written notice
of such act or omission to all Lessors and/or Mortgagees, and (ii) unless such
act or omission shall be one which is not capable of being remedied within a
reasonable period of time, until a reasonable period of time shall have elapsed
following the giving of such notice, during which period such Lessors and/or
Mortgagees shall have the right, but not the obligation, to remedy such act or
omission and thereafter diligently proceed to so remedy such act or obligation.
Section 10.4 PROVISIONS. The provisions of this Article shall (i) inure to
the benefit of Landlord, any future owner of the Building or the Real Property,
Lessor or Mortgagee and any sublessor thereof and (ii) apply notwithstanding
that, as a matter of law, this Lease may terminate upon the termination of any
such Superior Lease or Mortgage.
Section 10.5 NON-DISTURBANCE AGREEMENTS. Landlord hereby agrees to use
reasonable efforts to obtain for Tenant a subordination, non-disturbance and
attornment agreement (a "SNDA") from all existing Mortgagees and Lessors, in the
standard form customarily employed by such Mortgagee and/or Lessor. Landlord
represents that, as of the date hereof, there are no existing Superior Leases
and the only existing Mortgagee is Citicorp Real Estate, Inc. If Landlord fails
to deliver to Tenant a SNDA from Citicorp
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Real Estate, Inc. within twenty days after the execution and delivery of this
Lease by Landlord and Tenant, Tenant shall have the right for up to ten days
after the expiration of such 20-day period to terminate this Lease by giving
Landlord notice of termination, whereupon this Lease shall terminate as of the
date such notice is given. In the event Tenant fails to exercise its right to
terminate this Lease as aforesaid within the period specified, then this Lease
shall continue in full force and effect and Tenant shall have no further right
to terminate this Lease under this Section. As a condition to Tenant's agreement
hereunder to subordinate Tenant's interest in this Lease to any future Mortgage
and/or any Superior Lease made between Tenant and such Mortgagee and/or Lessor,
such Mortgagee under such Mortgage, or Lessor under such Superior Lease, as the
case may be, shall be obligated to deliver to Tenant a SNDA, in the standard
form customarily employed by such Mortgagee or Lessor.
Section 10.6 APPROVAL. Notwithstanding anything to the contrary contained
herein, this Lease shall cease to be effective and become null and void twenty
days after the execution and delivery hereof by Landlord and Tenant if Citicorp
Real Estate, Inc. does not approve of this Lease by such date.
Section 10.7 SNDA CONTROLLING. SNDA CONTROLS, AS BETWEEN TENANT AND
CITICORP REAL ESTATE, INC., IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY
BETWEEN THE PROVISIONS OF THIS LEASE AND THE PROVISIONS OF THE SNDA BETWEEN
TENANT AND SAID BANK.
ARTICLE 11
SERVICES
--------
Section 11.1 ELEVATORS. Landlord, at its expense, shall provide passenger
elevator service to the Premises at all times, and at least one freight elevator
serving the Premises available upon Tenant's prior request, on a non-exclusive
"first come, first served" basis with other Building tenants, on all Business
Days from 8:00 a.m. to 11:45 a.m. and from 1:00 p.m. to 4:45 p.m.
Section 11.2 (a) HEATING, VENTILATION AND AIR CONDITIONING. Landlord shall
furnish to the Premises heating, ventilation and air-conditioning ("HVAC") for
the comfortable occupancy of the Premises, in accordance with the standards set
forth in Exhibit D on all Business Days from 8:00 a.m. to 6:00 p.m. Landlord, at
its expense, shall repair and maintain the HVAC System in good working order,
provided repairs required as a result of the negligence or willful misconduct of
Tenant, its agents or employees, shall be performed at Tenant's expense.
Landlord shall have free access to all air-cooling, fan, ventilating and machine
rooms and electrical closets and all other mechanical installations of Landlord
(collectively, "Electrical Installations"), and Tenant shall not construct
partitions or other obstructions which may interfere with Landlord's access
thereto or the moving of Landlord's equipment to and from the Electrical
Installations. Neither Tenant, nor its agents, employees or contractors shall at
any time enter the Electrical Installations or tamper with, adjust, or otherwise
affect such Electrical
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Installations. Tenant shall not install any supplementary or auxiliary HVAC
equipment to serve the Premises without Landlord's prior written consent in each
instance.
(b) Landlord shall not be responsible if the normal operation of the
Building system providing HVAC to the Premises (the "HVAC System") shall fail to
provide cooled or heated air, as the case may be, at reasonable temperatures,
pressures, degrees of humidity, volumes or velocities to any parts of the
Premises (i) by reason of any machinery or equipment installed by or on behalf
of Tenant or any person claiming through or under Tenant, which shall have an
electrical load in excess of the average electrical load and human occupancy
factors for the HVAC System as designed, as the case may be, or (ii) because of
any rearrangement of partitioning or other Alterations (including the Initial
Installations) made or performed by or on behalf of Tenant or any person
claiming through or under Tenant. Tenant shall cause to be kept closed all of
the operable windows in the Premises and shall lower the blinds when necessary
because of the sun's position whenever the HVAC System is in operation or when
and as reasonably required by any Requirement or any applicable Governmental
Authority. Tenant at all times shall cooperate fully with Landlord and shall
abide by the rules and regulations which Landlord may reasonably prescribe for
the proper functioning and protection of the HVAC System.
Section 11.3 OVERTIME FREIGHT ELEVATORS AND HVAC. The Rent does not reflect
or include any charge to Tenant for the furnishing of any elevator service
(other than the one passenger elevator to be available at all times) or HVAC to
the Premises during any periods other than for the hours and days set forth in
Section 11.2 hereof ("Overtime Periods"). Landlord shall not be required to
furnish any such services during Overtime Periods unless Landlord has received
notice from Tenant requesting such services prior to 2:00 p.m. on the day upon
which such services are requested, or by 2:00 p.m. on the last preceding
Business Day, if such Overtime Periods are to occur on a day other than a
Business Day, but Landlord shall use reasonable efforts (without obligation to
incur any additional cost) to arrange such service on such shorter notice as
Tenant shall provide. If Landlord furnishes freight elevator service to the
Premises during Overtime Periods, Tenant shall pay to Landlord Landlord's then
established rates for such service in the Building, provided, however, (a)
Tenant shall not be required to pay for use of the freight elevator during
Overtime Periods if such use is (i) during the 96 hour period immediately prior
to Tenant's initial move-in to the Premises or (ii) in compliance with a
recycling program imposed by a Requirement where Landlord has not made the
freight elevator available during ordinary hours of operation, and (b) such
rates shall be reasonably comparable to the rates for the same services then
charged by other comparable first-class office buildings in mid-town Manhattan
(with Tenant in any contest thereof having the burden of proving that Landlord's
rates are not reasonably comparable). If Landlord shall furnish HVAC to the
Premises during Overtime Periods, Tenant shall pay to Landlord Landlord's then
established rates for such service in the Building. If another tenant utilizing
HVAC requests the same or overlapping Overtime Periods for such service, the
charge to Tenant shall be appropriately and equitably apportioned among the
tenants requesting HVAC for such period.
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Section 11.4 CLEANING. Landlord shall cause the Premises (excluding any
portions thereof (a) used for the storage, preparation, service or consumption
of food or beverages or (b) which Tenant requests Landlord not to clean or
enter) to be cleaned, substantially in accordance with the standards set forth
in Exhibit E. Any areas of the Premises requiring additional cleaning such as
areas used for preparation or consumption of food, shall be done, at Tenant's
expense, by Landlord's contractor whose rates shall be competitive with rates of
other such contractors in the vicinity of the Building. Tenant may contract
directly with Landlord's cleaning contractor or any other cleaning contractor
approved by Landlord, which approval shall not be unreasonably withheld, to
perform any additional cleaning. Landlord and its cleaning contractor and their
respective employees shall have access to the Premises at all times except
between 8:00 A.M. and 5:30 P.M. on Business Days.
Section 11.5 WATER. Landlord, at Landlord's expense, shall provide to the
Premises hot and cold water for drinking, cleaning and lavatory purposes. If
Tenant requires or uses water for any additional purposes, Landlord may install
a water meter. Tenant shall pay for the cost of such installation, maintenance,
repairs and replacements thereto, and for water consumed as shown on the meter.
Tenant shall also pay a reasonable charge for any required pumping or heating
thereof up to three percent of the cost of the water provided, and any sewer
rent, tax and/or charge now or hereafter assessed or imposed upon the Premises
or the Real Property pursuant to any Requirement.
Section 11.6 SERVICE INTERRUPTIONS. Landlord reserves the right to suspend
any service when necessary by reason of Unavoidable Delays, accidents or
emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are desirable or necessary to be made, until such
Unavoidable Delay, accident or emergency shall cease or such repairs,
alterations or improvements are completed. Landlord shall not be liable for any
such interruption, curtailment or failure to supply services provided Landlord
shall use reasonable efforts to restore such service, remedy such situation and
minimize any interference with Tenant's business. The exercise of any such right
or the occurrence of any such failure by Landlord shall not constitute an actual
or constructive eviction, in whole or in part, entitle Tenant to any
compensation, abatement or diminution of Rent, relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reason of inconvenience to Tenant, or interruption of Tenant's
business, or otherwise.
Section 11.7 REFUSE AND RUBBISH REMOVAL. Landlord shall provide refuse and
rubbish removal services at the Premises for ordinary office refuse and rubbish
(including fabrics) pursuant to regulations reasonably established by Landlord.
Tenant shall pay to Landlord, within 10 business days of receipt of an invoice
therefor, the cost of such removal to the extent that the same exceeds the
refuse and rubbish customarily generated by executive and general office
tenants. In addition, if Tenant shall dispose of its refuse and rubbish in the
public areas of the Building, Tenant shall be liable for the cost of such
removal. Tenant shall cause its employees, agents, contractors and business
visitors to
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observe such additional rules and regulations regarding rubbish removal and/or
recycling as Landlord may, from time to time, reasonably impose.
Section 11.8 CONDENSER WATER. Landlord shall provide 120 tons of condenser
water in connection with Tenant's independent supplemental air-conditioning
units, which shall be available at all times and installed in accordance with
the provisions of Article 5 hereof. Tenant shall pay Landlord an annual charge
for such condenser water, whether or not Tenant utilizes such amount of
condenser water (unless Tenant notifies Landlord in writing of its irrevocable
election to reduce the number of tons to which it is entitled hereunder in which
case Landlord shall only charge Tenant for such lower number of tons), at
Landlord's then established rate (which is as of the date hereof $150 per ton)
for condenser water, which charge shall be payable in equal monthly installments
together with Tenant's payment of Fixed Rent, provided, however, such rate shall
not be increased at any time by a percentage that exceeds 125 percent of the
proportionate increase of the Consumer Price Index from that in effect for the
month preceding the month in which the date of this Lease occurs to the month
preceding the month in which the date of the calculation of such charge occurs.
In addition to the foregoing charges there shall be a one-time "tap-in" fee
equal to $700 per ton of unit capacity, payable within fifteen (15) days after
rendition of a bill therefor. Landlord shall not be liable to Tenant for any
failure or defect in the supply or character of condenser water supplied to
Tenant by reason of any Requirement, act or omission of the public service
company serving the Building or for any other reason not attributable to the
negligence or wilful misconduct of Landlord, its agents, contractors and
employees. In connection with Tenant's independent supplemental air-conditioning
units, Tenant shall be entitled to access fresh air through the courtyard
windows of the Premises.
ARTICLE 12
INSURANCE. PROPERTY LOSS OR DAMAGE: REIMBURSEMENT
-------------------------------------------------
Section 12.1 (a) TENANT'S INSURANCE. Tenant, at its expense, shall obtain
and keep in full force and effect during the Term:
(i) a policy of commercial general liability insurance on an
occurrence basis against claims for personal injury, death and/or property
damage occurring in or about the Premises or the Building, under which Tenant is
named as the insured and Landlord, Landlord's managing agent and any Lessors and
any Mortgagees whose names shall have been furnished to Tenant are named as
additional insureds, which insurance shall provide primary coverage without
contribution from any other insurance carried by or for the benefit of Landlord,
Landlord's managing agent or any Lessors or Mortgagees named as additional
insureds, and Tenant agrees to obtain blanket broad-form contractual liability
coverage to insure its indemnity obligations set forth in Article 35 hereof. The
minimum limits of liability shall be a combined single limit with respect to
each occurrence in an amount of not less than $5,000,000 per location, provided,
however, that Landlord shall retain the right to require Tenant to increase such
coverage to that amount of insurance which in Landlord's reasonable judgment is
then
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being customarily required by landlords for similar office space in first-class
renovated buildings in the City of New York, provided, however, that such amount
of insurance shall not be increased at any time by a percentage that exceeds 125
percent of the proportionate increase of the Consumer Price Index from that in
effect for the month preceding the month in which the date of this Lease occurs
to the month preceding the month in which the date of the calculation of such
increase occurs. The deductible or self insured retention for such policy shall
in no event exceed $50,000 at any time. If the aggregate limit applying to the
Premises is reduced by the payment of a claim or establishment of a reserve,
Tenant shall immediately arrange to have the aggregate limit restored by
endorsement to the existing policy or the purchase of an additional insurance
policy unless, in Landlord's reasonable judgment, Tenant maintains sufficient
excess liability insurance to satisfy the liability requirements of this Lease
without the reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and such other
risks and hazards as are insurable under then available standard forms of "all
risk" insurance policies with extended coverage, insuring Tenant's Property, and
all Alterations and improvements to the Premises (including the Initial
Installations) to the extent such Alterations and improvements exceed the cost
of the improvements typically performed in connection with the initial occupancy
of tenants in the Building (hereinafter "Building Standard Installations"), for
the full insurable value thereof or replacement cost value thereof, having a
deductible amount, if any, as reasonably determined by Landlord; (iii) during
the performance of any Alteration, until completion thereof, Builder's risk
insurance on an "all risk" basis and on a completed value form including a
Permission to Complete and Occupy endorsement, for full replacement value
covering the interest of Landlord and Tenant (and their respective contractors
and subcontractors), any Mortgagee and any Lessor in all work incorporated in
the Building and all materials and equipment in or about the Premises;
(iii) workers' Compensation Insurance, as required by law;
(iv) disability Benefits Policy Insurance; and
(v) such other insurance in such amounts as Landlord, any
Mortgagee and/or any Lessor may reasonably require from time to time.
(b) All insurance required to be carried by Tenant pursuant to the
terms of this Lease (i) shall contain a provision that (x) to the extent
obtainable, no act or omission of Tenant shall affect or limit the obligation of
the insurance company to pay the amount of any loss sustained, (y) the policy
shall be noncancellable and/or no material change in coverage shall be made
thereto unless Landlord, Lessors and Mortgagees shall have received 30 days'
prior written notice of the same, and (z) Tenant shall be solely responsible for
the payment of all premiums under such policies and Landlord, Lessors and
Mortgagees shall have no obligation for the payment thereof, and (ii) shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the state in which the Building
is located, and rated in
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Best's Insurance Guide, or any successor thereto (or if there be none, an
organization having a national reputation) as having a "Best's Rating" of "A"
and a "Financial Size Category" of at least "VIII" or, if such ratings are not
then in effect, the equivalent thereof.
(c) On or prior to the Commencement Date, Tenant shall deliver to
Landlord appropriate policies of insurance, including evidence of waivers of
subrogation required to be carried by each party pursuant to this Article 12.
Evidence of each renewal or replacement of a policy shall be delivered by Tenant
to Landlord at least 5 days prior to the expiration of such policy. In lieu of
the policy of insurance required to be delivered to Landlord pursuant to this
Article (the "Policy"), Tenant may deliver to Landlord a certification from
Tenant's insurance company (in the form of an "Acord 27" or the equivalent and
not an "Acord 25-S") which shall be binding on Tenant's insurance company, and
which shall expressly provide that such certification (i) conveys to Landlord
and any other named insured and/or additional insureds thereunder (the "Insured
Parties") all the rights and privileges afforded under the Policy, (ii) contains
an unconditional obligation of the insurance company to give all Insured Parties
advance notice of termination of the Policy, and (iii) contains an unconditional
obligation of the insurance company to advise all Insured Parties at least 30
days in advance of any change to the Policy that would affect the interest of
any of the Insured Parties.
Section 12.2 WAIVER OF SUBROGATION. Landlord and Tenant shall each procure
an appropriate clause or endorsement in any fire or extended coverage insurance
covering the Premises, the Building and personal property, fixtures and
equipment located therein, wherein the insurance companies shall waive
subrogation or consent to a waiver of right of recovery and agree not to make
any claim against, or seek to recover from, the other for any loss or damage to
its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance. If either party shall be
unable to obtain the inclusion of such clause even with the payment of an
additional premium, then such party shall attempt to name the other party as a
loss payee under the policy. If the payment of an additional premium is required
for either (i) the inclusion of, or consent to, a waiver of subrogation, or (ii)
for naming any party a loss payee, each party shall advise the other, in
writing, of the amount of any such additional premiums and the other party may
pay such additional premium. If such other party shall not elect to pay such
additional premium or if it shall not be possible to have the other party named
as a loss payee, even with the payment of an additional premium, then the first
party shall not be required to obtain such waiver of subrogation or consent to
waiver provision and such party shall so notify the first party and the first
party's agreement to name the other party as an additional insured shall be
satisfied. Tenant acknowledges that Landlord shall not carry insurance on, and
shall not be responsible for, (i) damage to any Alterations or improvements to
the Premises, to the extent they exceed Building Standard Installations, (ii)
Tenant's Property, and (iii) any loss suffered by Tenant due to interruption of
Tenant's business.
Section 12.3 LANDLORD'S INSURANCE. Landlord shall obtain and keep in full
force and effect insurance against loss or damage by fire and other casualty to
the
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Building, including Tenant's Alterations (exclusive of Above Building Standard
Alterations), as may be insurable under then available standard Insurance
Services Office "all-risks" insurance policies or comparable broad form coverage
such as is provided under the ISO Commercial Risks Services, Inc., 1983 Form
entitled "Causes of Loss - Special Form" in an amount equal to one hundred
percent (100%) of the replacement cost thereof (as determined for insurance
purposes) or in such lesser amount as will avoid co-insurance (including an
"agreed amount" endorsement); provided, that, as to Tenant's Alterations,
Landlord shall only be required to insure the same, if Tenant shall notify
Landlord of the completion of any Alterations and of the cost thereof and shall,
from time to time, as required by Landlord or any of Landlord's insurers, assist
the same in determining the replacement cost thereof. Tenant shall maintain
adequate records with respect to such Alterations to facilitate the adjustment
of any insurance claims with respect thereto. Tenant shall cooperate with
Landlord and Landlord's insurance companies in the adjustment of any claims for
any damage to the Building or such Alterations.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
---------------------------------
Section 13.1 (a) RESTORATION. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord, at its expense, to substantially
the condition of the Premises prior to the damage, but Landlord shall have no
obligation to repair or restore (i) Tenant's Property or (ii) except as provided
in Section 13.1(b), any Alterations or improvements to the Premises, to the
extent such Alterations or improvements exceed Building Standard Installations
("Above Building Standard Installations"). So long as Tenant is not in default
beyond applicable grace or notice provisions in the payment or performance of
its obligations under this Section 13.1 and provided Tenant timely delivers to
Landlord either Tenant's Restoration Payment (hereinafter defined) or the
Restoration Security (hereinafter defined) or Tenant shall expressly waive any
obligation of Landlord to repair or restore any of Tenant's Above Building
Standard Installations, then until such time as the restoration of the Premises
or the Building, as the case may be, is substantially completed, Rent shall be
reduced in the proportion by which the area of the part of the Premises which is
neither usable (or accessible) nor used by Tenant bears to the total area of the
Premises.
(b) As a condition precedent to Landlord's obligation to repair or
restore any of Tenant's Above Building Standard Installations, Tenant shall (A)
pay to Landlord upon demand a sum ("Tenant's Restoration Payment") equal to the
amount, if any, by which (i) the cost, as estimated by a reputable independent
contractor designated by Landlord, of repairing and restoring all Alterations
and improvements in the Premises to their condition prior to the damage, exceeds
(ii) the cost of restoring the Premises with Building Standard Installations,
which amount shall include any deductible under Tenant's policy of insurance
insuring such Alterations and improvements, or (B) furnish
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to Landlord security (the "Restoration Security") in form and amount reasonably
acceptable to Landlord to secure Tenant's obligation to pay all costs in excess
of restoring the Premises with Building Standard Installations. If Tenant shall
fail to deliver to Landlord Tenant's Restoration Payment or the Restoration
Security, within 15 days after Landlord's demand therefor, Tenant's abatement of
Rent shall cease commencing as of the 16th day after Landlord's demand, and
shall resume upon delivery to Landlord of Tenant's Restoration Payment or the
Restoration Security.
Section 13.2 LANDLORD'S TERMINATION RIGHT. Notwithstanding anything to the
contrary contained in Section 13.1, if the Building shall be so damaged that, in
Landlord's reasonable opinion, demolition of the Building shall be required
(whether or not the Premises shall have been damaged or rendered untenantable),
then in such event, Landlord may, not later than 60 days following the date of
the damage, give Tenant a written notice terminating this Lease, provided that
if the Premises are not substantially damaged or rendered substantially
untenantable, Landlord may not terminate this Lease unless it shall elect to
terminate leases (including this Lease) affecting at least 60 percent of the
rentable area of the Building (excluding any rentable area occupied by Landlord
or its affiliates). If this Lease is so terminated, (i) the Term shall expire
upon the 10th day after such notice is given, (ii) Tenant shall vacate the
Premises and surrender the same to Landlord, (iii) Tenant's liability for Rent
shall cease as of the date of the damage, (iv) any prepaid Rent for any period
after the date of the damage shall be refunded by Landlord to Tenant, and (v)
Landlord shall collect the insurance proceeds of policies providing coverage for
Alterations and other improvements to the Premises. Landlord shall retain such
proceeds to the extent that Landlord performed or paid for such Alterations and
improvements, whether by contribution, offset or otherwise. The balance of such
proceeds, if any, shall be paid to Tenant.
Section 13.3 TENANT'S TERMINATION RIGHT. If the Premises are materially
damaged or if the Building shall be so damaged that Tenant is deprived of
reasonable access to the Premises, and if Landlord elects to restore the
Premises, Landlord shall, within 60 days following the date of the damage, cause
a contractor or architect selected by Landlord to give notice ("Restoration
Notice") to Tenant of the date by which such contractor or architect estimates
the restoration of the Premises shall be substantially completed. If the
Restoration Notice estimates that the restoration shall not be substantially
completed on or before a date ("Landlord's Restoration Date") which shall be the
later of (i) 12 months following the date of such damage, or (ii) nine months
following the delivery by Tenant to Landlord of Tenant's Restoration Payment or
the Restoration Security, unless Tenant has expressly waived Landlord's
obligations to restore the Above Building Standard Installations in which event
Landlord's Restoration Date shall be 12 months following the date of such
damage, then Tenant shall have the right to terminate this Lease by giving
written notice ("Termination Notice") to Landlord not later than 30 days
following Tenant's receipt of the Restoration Notice. If Tenant delivers to
Landlord a Termination Notice, this Lease shall be deemed to have terminated as
of the date of the giving of the Termination Notice as if such date were the
Expiration Date, and Rent shall be apportioned and shall be paid or refunded, as
the case may be, up
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to and including the date of such damage. If Tenant shall not have given the
Termination Notice pursuant to this Section 13.3, and Landlord shall fail to
substantially complete the restoration of the Premises on or before Landlord's
Restoration Date, subject to Unavoidable Delays (which may not exceed an
additional three months in the aggregate), then Tenant shall have the right to
terminate this Lease by delivery to Landlord of a Termination Notice not later
than 30 days following such date.
Section 13.4 FINAL 18 MONTHS. Notwithstanding anything set forth to the
contrary in this Article 13, in the event that any damage rendering the Premises
wholly untenantable occurs during the final 18 months of the Term, either
Landlord or Tenant may terminate this Lease by notice to the other party within
30 days after the occurrence of such damage and this Lease shall expire on the
30th day after the date of such notice unless Tenant exercises its right to
renew this Lease pursuant to Article 37 prior to the 30th day after the date of
such notice. For purposes of this Section 13.4, the Premises shall deemed wholly
untenantable if due to such damage, Tenant shall be precluded from using more
than 50 percent of the Premises for the conduct of its business and Tenant's
inability to so use the Premises is reasonably expected to continue until at
least the earlier of the (i) Expiration Date and (ii) the 90th day after the
date when such damage occurs.
Section 13.5 WAIVER OF REAL PROPERTY LAW SS. 227. This Article 13
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York, which provides for such contingency
in the absence of an express agreement, and any other law of like nature and
purpose now or hereafter in force, shall have no application in any such case.
Section 13.6 INABILITY TO COLLECT. Notwithstanding any of the foregoing
provisions of this Article, if Landlord or any Mortgagee or Lessor shall be
unable to collect all of the insurance proceeds (including rent insurance
proceeds) applicable to damage or destruction of the Premises or the Building by
reason of some action or inaction on the part of Tenant or any of its employees,
agents or contractors, without prejudice to any other remedies which may be
available against Tenant, there shall be no abatement of Rent to the extent of
such loss of insurance proceeds.
Section 13.7 LANDLORD'S LIABILITY. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
its agents shall be liable for any damage to property of Tenant or of others
entrusted to employees of the Building, or for the loss of or damage to any
property of Tenant by theft or otherwise. None of Landlord, its agents, any
Mortgagee or Lessor shall liable for any injury or damage to persons or property
or interruption of Tenant's business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or by construction of
any private, public or quasi-public work, or any latent defect in the Premises
or in the Building (except that Landlord shall be required to repair the same to
the extent provided in Article 5). No penalty shall accrue for delays which may
arise by reason of adjustment of fire insurance on the part of Landlord or
Tenant, or for delay on
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account of "labor troubles" or any other cause beyond Landlord's control arising
from any repair or restoration of any portion of the Premises or of the Building
provided that Landlord shall perform any such repair or restoration
expeditiously and in a manner as to minimize unreasonable interference with
Tenant's business. None of the foregoing shall affect any right of Landlord to
the indemnity from Tenant to which Landlord may be entitled under Article 35 in
order to recoup for payments made to compensate for losses of third parties.
Section 13.8 WINDOWS. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant shall not be
entitled to any compensation or abatement of any Rent, nor shall the same
release Tenant from its obligations hereunder or constitute an actual or
constructive eviction.
ARTICLE 14
EMINENT DOMAIN
--------------
Section 14.1 (a) TOTAL TAKING. If all or substantially all of the Real
Property, the Building or the Premises shall be acquired or condemned for any
public or quasi-public purpose, this Lease shall terminate and the Term shall
end as of the date of the vesting of title, with the same effect as if such date
were the Expiration Date, and Rent shall be prorated and adjusted as of such
date.
(b) PARTIAL TAKING. If only a part of the Real Property, the Building
or the Premises shall be acquired or condemned then, except as hereinafter
provided in this Article, this Lease and the Term shall continue in full force
and effect, provided that from and after the date of the vesting of title, the
Rent and Tenant's Proportionate Share shall be modified to reflect the reduction
of the Premises and/or the Building as a result of such acquisition or
condemnation.
(c) LANDLORD'S TERMINATION RIGHT. Whether or not the Premises are
affected, Landlord may give to Tenant, within 60 days following the date upon
which Landlord receives notice that at least 15 percent of the Real Property,
the Building or the Premises has been acquired or condemned, a notice of
termination of this Lease, provided that Landlord elects to terminate leases
(including this Lease), affecting at least 60 percent of the rentable area of
the Building (excluding any rentable area leased by Landlord or its affiliates).
(d) TENANT'S TERMINATION RIGHT. If the part of the Real Property so
acquired or condemned contains more than 15 percent of the total area of the
Premises immediately prior to such acquisition or condemnation, or if, by reason
of such acquisition or condemnation, Tenant no longer has reasonable means of
access to the Premises, Tenant may terminate this Lease by notice to Landlord
given within 30 days
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following the date upon which Tenant received notice of such acquisition or
condemnation. If Tenant so notifies Landlord, this Lease shall terminate and the
Term shall end and expire upon the 30th day following the giving of such notice.
If a part of the Premises shall be so acquired or condemned and this Lease and
the Term shall not be terminated in accordance with this Section 14.1, Landlord,
at Landlord's expense, shall restore that part of the Premises not so acquired
or condemned to a self-contained rental unit substantially equivalent (with
respect to character, quality, appearance and services) to that which existed
immediately prior to such acquisition or condemnation, excluding Tenant's
Alterations and/or above Building-Standard Installations.
(e) APPORTIONMENT OF RENT. Upon any termination of this Lease pursuant
to the provisions of this Article 14, Rent shall be apportioned as of, and shall
be paid or refunded up to and including, the date of such termination.
Section 14.2 AWARDS. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Tenant's Above
Building Standard Installations included in such taking and for any moving
expenses, provided any such award is in addition to, and does not result in a
reduction of, the award made to Landlord.
Section 14.3 TEMPORARY TAKING. If the whole or any part of the Premises is
acquired or condemned temporarily during the Term for any public or quasi-public
use or purpose, Tenant shall give prompt notice to Landlord and the Term shall
not be reduced or affected in any way and Tenant shall continue to pay all Rent
payable by Tenant without reduction or abatement, and Tenant shall be entitled
to receive any award or payment for such use, which shall be received, held and
applied by Tenant as a trust fund for payment of the Rent falling due.
ARTICLE 15
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
--------------------------------------
Section 15.1 (a) NO ASSIGNMENT/SUBLET. Except as expressly set forth
herein, Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, shall not assign, mortgage,
pledge, encumber, or otherwise transfer this Lease, whether by operation of law
or otherwise, and shall not sublet (or underlet), or permit, or suffer the
Premises or any part thereof to be used or occupied by others (whether for desk
space, mailing privileges or otherwise), without Landlord's prior written
consent in each instance. Any assignment, sublease, mortgage, pledge,
encumbrance or transfer in contravention of the provisions of this Article 15
shall __________________________________.
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(b) COLLECTION OF RENT. If, without Landlord's consent, this Lease is
assigned, or any part of the Premises is sublet or occupied by anybody other
than Tenant or this Lease or the Premises or Tenant's Property is encumbered (by
operation of law or otherwise), Landlord may, after default by Tenant, collect
rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Rent herein reserved. No assignment, subletting, occupancy or
collection shall be deemed a waiver of the provisions of this Article 15, the
acceptance of the assignee, subtenant or occupant as tenant, or the release of
Tenant from the performance of Tenant's covenants hereunder. Tenant shall remain
fully liable for the obligations under this Lease.
(c) FURTHER ASSIGNMENT/SUBLET. Landlord's consent to any assignment or
subletting shall not relieve Tenant from obtaining Landlord's express written
consent to any further assignment or subletting. In no event shall any permitted
subtenant assign or encumber its sublease or further sublet any portion of its
sublet space, or otherwise suffer or permit any portion of the sublet space to
be used or occupied by others, without Landlord's prior written consent in each
instance, not to be unreasonably withheld by Landlord with respect to one
further subletting by the subtenant, provided that the subtenant and such
proposed sublease shall comply with the requirements of this Article 15.
Section 15.2 TENANT'S NOTICE. If Tenant desires to assign this Lease in its
entirety or sublet all or any portion of the Premises, Tenant shall give notice
thereof to Landlord, which shall be accompanied by (a) with respect to an
assignment of this Lease, the date Tenant desires the assignment to be
effective, and (b) with respect to a sublet of all or a part of the Premises, a
description of the portion of the Premises to be sublet. Such notice shall be
deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) shall be granted the right, at Landlord's option, (1) to terminate
this Lease with respect to such space as Tenant proposes to sublease (the
"Partial Space") if the proposed transaction is a sublease for a term expiring
within the last 18 months of the Term, upon the terms and conditions hereinafter
set forth, or (2) if the proposed transaction is an assignment of this Lease or
a subletting of 75 percent or more of the rentable square footage of the
Premises if the proposed transaction is a sublease for a term expiring within
the last 18 months of the Term, to terminate this Lease with respect to the
entire Premises. Such option may be exercised by notice from Landlord to Tenant
within 20 days after Landlord's receipt of Tenant's notice.
Section 15.3 LANDLORD'S TERMINATION. If Landlord exercises its option to
terminate all or a portion of this Lease pursuant to Section 15.2, (i) this
Lease shall end and expire with respect to all or a portion of the Premises, as
the case may be, on the date that such assignment or sublease was to commence,
(ii) Tenant's Rent shall be apportioned, paid or refunded as of such date, (iii)
Tenant, upon Landlord's request, shall enter into an amendment of this Lease
ratifying and confirming such total or partial termination, and setting forth
any appropriate modifications to the terms and provisions hereof, (iv) Landlord
shall cooperate with Tenant to reduce the face amount of the Letter of Credit by
the same proportion as the terminated portion of the Premises bore to the
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whole of the Premises, and (v) Landlord shall be free to lease the Premises (or
any part thereof) to Tenant's prospective assignee or subtenant.
Section 15.3A (a) LANDLORD'S LEASEBACK. If Landlord receives a notice from
Tenant as described in Section 15.2, Landlord or its designee may sublease from
Tenant the space described in Tenant's notice (and if the space described in
Tenant's notice constitutes 75 percent or more of the rentable square footage
contained in the Premises, Landlord may sublease from Tenant the entire
Premises) (such space being hereafter referred to as the "Leaseback Space") if
the proposed transaction is a sublease for a term not expiring within the last
18 months of the Term, provided, however, that Landlord shall have no right,
unless the Leaseback Space comprises 75 percent or more of the rentable square
footage of the Premises, to sublease up to the greater of (x) one quarter of the
rentable square footage of the Premises and (y) one full floor of the Premises.
If Landlord exercises its option to sublet the Leaseback Space, such sublease to
Landlord or its designee (as subtenant) shall:
(i) be expressly subject to all of the covenants, terms and
conditions of this Lease except such as are irrelevant or inapplicable, and
except as expressly set forth in this Article 15 to the contrary;
(ii) give the subtenant the unqualified and unrestricted
right, without Tenant's consent, to assign such sublease or any interest
therein and/or to sublet all or any portion of the space covered by such
sublease and to make alterations and improvements in the space covered by
such sublease, and if the proposed sublease will result in all or
substantially all of the Premises being sublet, grant Landlord or its
designee the option to extend the term of such sublease for the balance of
the Term of this Lease less one day;
(iii) provide that any assignee or further subtenant of
Landlord or its designee, may, at Landlord's option, be permitted to make
alterations and decorations in such space and that any or all of such
alterations, decorations and installations may be removed by such assignee
or subtenant, at its option, prior to or upon the expiration or other
termination of such sublease, provided that such assignee or subtenant
shall, at its expense, repair any damage caused by such removal; and
(iv) provide that (A) the parties to such sublease expressly
negate any intention that the sublease estate be merged with any other
estate held by either of such parties, (B) any assignment or sublease by
Landlord or its designee (as the subtenant) may be for any purpose or
purposes that Landlord, in its sole discretion, shall deem appropriate, (C)
Tenant shall, at its sole cost and expense, at all times provide and permit
reasonably appropriate means of ingress to and egress from such space so
sublet by Tenant to Landlord or its designee, (D)Landlord may, at Tenant's
expense make such alterations as may be required or deemed necessary by
Landlord to physically separate the Leaseback Space from the balance of the
Premises and to comply with any Requirements or
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insurance requirements relating to such separation, and (E) that at the
expiration of the term of such sublease, Tenant will accept the Leaseback
Space in its then existing condition, subject to the obligations of the
subtenant to make such repairs as may be necessary to preserve such
premises in good order and condition.
(b) OBLIGATIONS RE: LEASEBACK SPACE. If Landlord exercises its option
to sublet the Leaseback Space:
(i) Tenant shall be released from all liabilities and
obligations under this Lease with respect to the Leaseback Space for the
Leaseback Space term and Landlord shall indemnify, defend and hold harmless
Tenant from all obligations under this Lease as to the Leaseback Space during
the period it is so sublet to Landlord, except as to any obligation arising out
of or resulting from the negligence or willful misconduct of Tenant, or any of
its agents, contractors or employees;
(ii) Performance by Landlord, or its designee, under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this Lease and Tenant shall not be liable for any
default under this Lease or deemed to be in default hereunder if such default is
occasioned by or arises from any act or omission of the subtenant pursuant such
sublease; or
(iii) Tenant shall have no obligation, at the expiration or
earlier termination of the Term, to remove any alteration, installation or
improvement made in the Leaseback Space by Landlord (or Landlord's designee);
and
(iv) Any consent required of Tenant, as Landlord under the
sublease, shall be deemed granted if consent with respect thereto is granted by
Landlord under this Lease, and any failure of Landlord (or its designee) to
comply with the provisions of the sublease other than with respect to the
payment of Rent shall not constitute a default thereunder or hereunder if
Landlord shall have consented to such non-compliance.
Section 15.4 CONSENT BY LANDLORD. If Landlord does not exercise any of
Landlord's options provided under Sections 15.2 and 15.3A (which options shall
not apply to any proposed subtenant which is a licensee of a tradename owned by
Tenant, and provided that no Event of Default exists as of the time of
Landlord's consent to, and as of the effective date of, the proposed assignment
or sublease, Landlord's consent to the proposed assignment or sublease shall not
be unreasonably withheld or delayed. Such consent shall be granted or declined
(if the following provisions are unsatisfied), as the case may be, within 25
days after Landlord's receipt of (a) a true and complete statement reasonably
detailing the identity of the proposed assignee or subtenant, the nature of its
business and its proposed use of the Premises, (b) current financial information
with respect to the proposed assignee or subtenant, including its most recent
financial statements, and (c) any other information Landlord may reasonably
request, provided that:
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(i) in Landlord's reasonable judgment, the proposed assignee
or subtenant is engaged in a business or activity, and the Premises will be used
in a manner, which (a) is in keeping with the then standards of the Building,
(b) limits the use of the Premises to Permitted Uses and (c) does not violate
any restrictions set forth in this Lease, and/or any negative covenant as to use
contained in any other lease in the Building of which Tenant has been advised;
(ii) the proposed assignee or subtenant is a reputable person
or entity of good character with sufficient financial means (given the
obligations set forth in the Lease) to perform all of its obligations under the
Lease or sublease, as the case may be, and Landlord has been furnished with
reasonable proof thereof;
(iii) if Landlord has or reasonably expects to have within six
months thereafter, comparable space available in the Building, neither the
proposed assignee or subtenant nor any person which, directly or indirectly,
controls, is controlled by, or is under common control with, the proposed
assignee or subtenant is then an occupant of the Building;
(iv) the proposed assignee or subtenant is not a person or
entity (or affiliate of a person or entity) with whom Landlord or Landlord's
agent is then or has been within the prior six months negotiating in connection
with the rental of space in the Building; upon written request by Tenant,
Landlord shall advise Tenant whether it is then negotiating with any proposed
assignee or subtenant;
(v) the form of the proposed sublease or instrument of
assignment shall be reasonably satisfactory to Landlord and shall comply with
the provisions of this Article 15;
(vi) there shall be not more than four subtenants in each
floor of the Premises;
(vii) Tenant shall, upon demand, reimburse Landlord for all
reasonable expenses incurred by Landlord in connection with such assignment or
sublease, including any investigations as to the acceptability of the proposed
assignee or subtenant, reviewing any plans and specifications for Alterations
proposed to be made in connection therewith, and all legal costs reasonably
incurred in connection with the granting of any requested consent;
(viii) Tenant shall not publicly advertise the availability of
the Premises or list the Premises to be sublet or assigned with a broker, agent
or otherwise at a rental rate less than the fixed rent and additional rent at
which Landlord is then offering to lease other space in the Building but the
foregoing provision shall not be deemed to prohibit Tenant from responding to
brokers' solicitations and any other inquiries regarding the proposed rental
rate or from negotiating a sublease at a lesser rate of rent and consummating
the same insofar as it may be permitted under the provisions of this Article 15;
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(ix) the proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to the service of process in, and the jurisdiction of the courts of, the city
and state in which the Building is located; and
(x) the provisions of clauses (iii), (iv) and (viii) shall not
apply to any proposed subtenant which is a licensee of a tradename owned by
Tenant.
Section 15.5 BINDING ON TENANT; INDEMNIFICATION OF LANDLORD. Each sublease
pursuant to this Article 15 shall be subject to all of the covenants, terms and
conditions of this Lease. Notwithstanding any such sublease to any subtenant
and/or acceptance of Rent by Landlord from any subtenant, Tenant shall remain
fully liable for the payment of all Rent due and to become due hereunder and for
the performance of all the covenants, terms and conditions contained in this
Lease on Tenant's part to be observed and performed; and all acts and omissions
of any licensee or subtenant or anyone claiming under or through any subtenant
which shall violate any obligations of this Lease shall be deemed to be a
violation by Tenant. Tenant shall indemnify, defend, protect and hold harmless
Landlord from and against any and all losses, liabilities, damages and expenses
(including reasonable attorneys' fees and disbursements) resulting from any
claims that may be made against Landlord by the proposed assignee or subtenant
or by any brokers or other persons claiming a commission or similar compensation
in connection with the proposed assignment or sublease irrespective of whether
Landlord shall give or decline to give its consent to any proposed assignment or
sublease, or if Landlord shall exercise any of its options under this Article
15.
Section 15.6 TENANT'S FAILURE TO COMPLETE. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 180 days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of Section 15.2 and 15.4 hereof before assigning this Lease or
subletting all or part of the Premises.
Section 15.7 SUBLEASE RESTRICTIONS. With respect to each and every sublease
and/or assignment authorized by Landlord under the provisions of this Lease, it
is further agreed that:
(i) no sublease shall be for a term ending later than one day
prior to the Expiration Date of this Lease;
(ii) no sublease shall be delivered, and no subtenant shall
take possession of any part of the Premises, until an executed counterpart of
such sublease has been delivered to Landlord and approved in writing by Landlord
(or deemed approved pursuant to Section 15.4 hereof); and
(iii) each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate, and
each subtenant shall be deemed to have agreed that in the event of termination,
re-entry or dispossession by
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Landlord under this Lease, Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublandlord, under such sublease, and
such subtenant shall, at Landlord's option, attorn to Landlord pursuant to the
then executory provisions of such sublease, except that Landlord shall not be
(A) liable for any previous act or omission of Tenant under such sublease, (B)
subject to any counterclaim, offset or defense not expressly provided in such
sublease, which theretofore accrued to such subtenant against Tenant, (C) bound
by any previous modification of such sublease or by any prepayment of more than
one month's Rent, (D) bound to return such subtenant's security deposit, if any,
except to the extent such deposit shall come into Landlord's actual possession
and such subtenant shall be entitled to such return under the terms of such
sublease, or (E) obligated to make any payment to or on behalf of such subtenant
or to perform any work in the subleased space or the Building or in any way to
prepare the sublease space for occupancy beyond Landlord's obligations under
this Lease. The provisions of this Article 15 shall be self-operative and no
further instrument shall be required to give effect to this provision. The
subtenant shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such subordination and attornment.
Section 15.8 PROFITS. If Tenant shall enter into any assignment or sublease
permitted and/or consented to by Landlord, Tenant shall, in consideration
therefor, pay to Landlord:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to 50 percent of all sums and other considerations
paid to Tenant by the assignee for or by reason of such assignment (including
sums paid for Tenant's Property) after first deducting (i) Tenant's reasonable
brokerage fees, legal expenses and architectural fees in connection with such
transaction, (ii) the costs, if any, incurred by Tenant in preparing the
assigned space for occupancy, (iii) in the event of the sale of Tenant's
Property, the then unamortized or undepreciated cost thereof and the unamortized
or undepreciated cost of any Tenant's Property assigned to such assignee in each
ease determined on the basis of Tenant's federal income tax returns, (iv) any
construction allowance provided to the assignee under the assignment, and (v)
the unamortized cost of any leasehold improvements made by Tenant to the
Premises at Tenant's expense (i.e., in excess of amounts funded by Landlord
pursuant to Section 4.2 or performed and funded by Landlord pursuant to Section
5.9).
(b) In the case of a sublease, 50 percent of any consideration payable
under the sublease to Tenant by the subtenant which exceeds on a per square foot
basis the Fixed Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space (together with any sums paid for the
sale or rental of Tenant's property) after first deducting (i) Tenant's
reasonable brokerage fees, reasonable legal expenses and reasonable
architectural fees in connection with such transaction, (ii) the costs, if any,
incurred by Tenant in preparing the sublease space for occupancy, including the
cost of physically separating the sublet area from the remainder of the
Premises, (iii) in the event of the sale of Tenant's Property, the then
unamortized or undepreciated cost thereof and the unamortized or undepreciated
cost of any Tenant's Property subleased to
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and used by such subtenant, in each case determined on the basis of Tenant's
federal income tax returns, (iv) any Rent concession or construction allowance
provided to the subtenant under the sublease amortized on a straight line basis
over the term of such sublease, and (v) the unamortized cost of any leasehold
improvements made by Tenant to the Premises at Tenant's expense (i.e., in excess
of amounts funded by Landlord pursuant to Section 4.2 or performed and funded by
Landlord pursuant to Section 5.9), amortized on a straight line basis over the
balance of the then Term of this Lease. The sums payable under this clause shall
be paid by Tenant to Landlord as and when paid by the subtenant to Tenant.
Section 15.9 (a) TRANSFERS. If Tenant is a corporation, the transfer (by
one or more transfers) of a majority of the stock of Tenant shall be deemed a
voluntary assignment of this Lease; provided, however, the provisions of this
Article 15 shall not apply to the transfer of shares of stock of Tenant if and
so long as Tenant is publicly traded on a nationally recognized stock exchange.
For purposes of this Section 15.9 the term "transfers" shall be deemed to
include the issuance of new stock which results in a majority of the stock of
Tenant being held by a person or entity which does not hold a majority of the
stock of Tenant on the date hereof. The provisions of Section 15.1 shall not
apply to transactions with, and Tenant may, without Landlord's consent, assign
its interest in this Lease to, a corporation or other business entity into or
with which Tenant is merged or consolidated or to which substantially all of
Tenant's assets are transferred so long as (i) such transfer was made for a
legitimate independent business purpose and not for the principal purpose of
transferring this Lease, (ii) the successor to Tenant has a net worth computed
in accordance with generally accepted accounting principles at least equal to
the net worth of the original Tenant on the date of this Lease, and (iii) proof
satisfactory to Landlord of such net worth is delivered to Landlord at least 10
days prior to the effective date of any such transaction. Tenant may also, upon
prior notice to but without the consent of Landlord, permit any corporation or
other business entity which controls, is controlled by, or is under common
control with the Tenant or controlled by Takihyo, Inc., Tomio Taki and/or Frank
Mori (a "Related Corporation") to sublet all or part of the Premises for any
Permitted Use. Such sublease shall not be deemed to vest in any such Related
Corporation any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder. For
the purposes hereof, "control" shall be deemed to mean ownership of not less
than 50 percent of all of the voting stock of such corporation or not less than
50 percent of all of the legal and equitable interest in any other business
entity if Tenant is not a corporation.
(b) MISCELLANEOUS. The limitations set forth in this Section 15.9 shall
apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if any, and
any transfer by any such entity in violation of this Section 15.9 shall be a
transfer in violation of Section 15.1.
(c) MODIFICATIONS, ETC. Any modification, amendment or extension of a
sublease and/or any other agreement by which in the case of such sublease or
agreement a landlord of a building other than the Building agrees to assume the
obligations of
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Tenant under this Lease shall be deemed a sublease for the purposes of Section
15.1 hereof.
Section 15.10 ASSUMPTION OF OBLIGATIONS. Any assignment or transfer,
whether made with Landlord's consent or without Landlord's consent, if and to
the extent permitted hereunder, shall not be effective unless and until the
assignee executes, acknowledges and delivers to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee (i) assumes Tenant's
obligations under this Lease and (ii) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers.
Section 15.11 TENANT'S LIABILITY. The joint and several liability of Tenant
and any successors-in-interest of Tenant and the due performance of Tenant's
obligations under this Lease shall not be discharged, released or impaired by
any agreement or stipulation made by Landlord, or any grantee or assignee of
Landlord, extending the time, or modifying any of the terms and provisions of
this Lease, or by any waiver or failure of Landlord, or any grantee or assignee
of Landlord, to enforce any of the terms and provisions of this Lease.
Section 15.12 LISTINGS. The listing of any name other than that of Tenant,
on the doors of the Premises, the Building directory, or otherwise, shall not
vest any right or interest in this Lease or in the Premises, nor shall it be
deemed to constitute Landlord's consent to any assignment or transfer of this
Lease or to any sublease of Premises or to the use or occupancy thereof by
others. Any such listing shall constitute a privilege revocable in Landlord's
discretion by notice to Tenant.
Section 15.13 LEASE DISAFFIRMANCE OR REJECTION. If at any time after an
assignment by Tenant named herein, this Lease is disaffirmed or rejected in any
proceeding of the types described in Section 18.1 (vii) hereof or any similar
proceeding, or upon a termination of this Lease due to any such proceeding,
Tenant named herein, upon request of Landlord given after such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or rejection or in the event of termination other than by act of
Landlord), shall (a) pay to Landlord all Rent and other charges due and owing by
the assignee to Landlord under this Lease to and including the date of such
disaffirmance, rejection or termination, and (b) as "tenant," enter into a new
lease of the Premises with Landlord for a term commencing on the effective date
of such disaffirmance, rejection or termination and ending on the Expiration
Date, unless sooner terminated in accordance therewith, at the same Rent and
upon the then executory terms, covenants and conditions contained in this Lease,
except that (i) the rights of Tenant named herein under the new lease shall be
subject to the possessory rights of the assignee under this Lease and the
possessory rights of any persons claiming through or under such assignee or by
virtue of any statute or of any order of any court, (ii) such new lease shall
require all defaults existing under this Lease to be cured by Tenant named
herein with due diligence, and (iii) such new lease shall require Tenant named
herein to pay all Rent which, had this Lease not been so disaffirmed, rejected
or terminated, would have become due under the provisions of this
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Lease after the date of such disaffirmance, rejection or termination with
respect to any period prior thereto. If Tenant named herein defaults in its
obligations to enter into such new lease for a period of 10 days after
Landlord's request, then, in addition to all other rights and remedies by reason
of default, either at law or in equity, Landlord shall have the same rights and
remedies against Tenant named herein as if it had entered into such new lease
and such new lease had thereafter been terminated as of the commencement date
thereof by reason of Tenant's default thereunder.
Section 15.14 ARBITRATION. Notwithstanding any of the foregoing to the
contrary, Tenant may dispute the reasonableness of the withholding by Landlord
of its consent to a proposed assignment or sublease by arbitration of the issue
in the City in which the Building is located in accordance with the rules and
regulations for commercial matters then prevailing of the American Arbitration
Association or its successor (the "AAA") pursuant to a submission effected
within 10 Business Days after written notice of the withholding of consent has
been given by Landlord to Tenant. Provided the rules and regulations of the AAA
so permit, the AAA shall select a single arbitrator within two Business Days
after such submission or application, the arbitration shall commence two
Business Days thereafter and shall be conducted for at least seven hours on the
date of commencement until completion, each party shall have no more than a
total of two hours to present its case and to cross-examine or interrogate
persons supplying information or documentation on behalf of the other party and
the arbitrator shall make a determination within 3 Business Days after
conclusion of the arbitration. The arbitrator shall have at least 10 years'
experience in leasing of commercial properties similar to the Building in the
City in which the Building is located. Any such determination shall be final and
binding upon the parties, whether or not a judgment shall be entered in any
court; and all actions necessary to implement the decision of the AAA shall be
undertaken as soon as possible, but in no event later than 10 Business Days
after the rendering of such decision. The judgment upon the dispute or any award
rendered may be entered in any court having jurisdiction thereof. All fees
payable to the AAA for services rendered in connection with the resolution of
the dispute shall be paid for by the party suffering the adverse decision of the
AAA.
Section 15.15 PERMITTED USERS. Tenant has advised Landlord that one or more
licensees of trademarks owned by Tenant who are not affiliated with Tenant
(collectively, the "Permitted Users") will be using desk space in the Premises.
Notwithstanding anything to the contrary in this Article 15, Landlord consents
to such use upon the following conditions: (i) the Permitted Users shall have no
privity of contract with Landlord and therefore shall have no rights under this
Lease, and Landlord shall have no liability or obligation to the Permitted Users
under this Lease or for any reason whatsoever in connection with such use or
occupancy, which use and occupancy shall be subject and subordinate to this
Lease (including, without limitation, Article 9), (ii) the Permitted Users shall
use the Premises in conformity will all applicable provisions of this Lease,
including Article 2, and exclusively for the sale and marketing of high quality,
fashionable merchandise under a tradename owned by Tenant, (iii) any act or
omission of such Permitted Users shall be deemed to be the act or omission of
Tenant under this
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Lease, (iv) there will be no separate entrances or demising walls for the
Permitted Users, (v) Tenant shall have no right to assign this Lease or sublet
all or any part of the Premises to any Permitted Users except as expressly
permitted by this Lease, (vi) any such Permitted Users shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to service of process in, and the jurisdiction of the court of, the State of New
York, (vii) the total number of persons using desk space pursuant to this
Section 15.15 shall not exceed six at any one time, and (viii) the aggregate
number of rentable square feet used by Permitted Users shall not exceed 5,000
rentable square feet. Prior to permitting any Permitted Users to use desk space
in the Premises, Tenant shall give advance written notice to Landlord of such
proposed use, which notice shall set forth the name and address and business of
such Permitted User. Tenant shall have no obligation to share with Landlord any
consideration received by it from a Permitted User and Landlord's options
contained in Sections 15.2 and 15.3A shall not apply in the case of any
Permitted User. Tenant hereby indemnifies Landlord against any loss, claim or
damage arising from the acts or omissions of any Permitted Users.
ARTICLE 16
ELECTRICITY
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Section 16.1 SUBMETERED ELECTRICITY. Landlord shall redistribute or furnish
electricity to or for the use of Tenant in the Premises for the operation of
Tenant's business and Tenant's electrical facilities in the Premises, including,
without limitation, the lighting fixtures and the electrical receptacles
installed in the Premises. The risers serving the Premises shall be capable of
supplying a demand load of six watts of electricity per rentable square foot of
the Premises without taking into account any electricity necessary to operate
the HVAC Systems. Tenant shall pay to Landlord, on demand, from time to time,
but no more frequently than monthly, for its consumption of electricity at the
Premises, as additional rent for such service from and after the Commencement
Date, the product (the "Electricity Additional Rent") of (x) the Cost Per
Kilowatt Hour, and (y) Tenant's aggregate consumption of electricity, as
determined by a meter or submeter (installed by Landlord, at Tenant's cost, for
the purpose of measuring such consumption), plus Landlord's charge in an amount
equal to three percent of such product for Landlord's costs of maintaining,
repairing and reading such meter or submeter. Where more than one meter measures
the electricity to Tenant, the electricity rendered through each meter shall be
computed and billed together in accordance with the provisions set forth above.
Bills for such amounts shall be rendered to Tenant at such times as Landlord may
elect and Tenant shall pay such bills within 15 days after the rendition
thereof. The rate to be paid by Tenant for submetered electricity shall include
any taxes or other charges in connection therewith. If any tax is imposed upon
Landlord's receipts from the sale or resale of electricity to Tenant, Tenant's
pro rata share of such tax shall be paid by Tenant if and to the extent
permitted by law.
Section 16.2 (a) EXCESS ELECTRICITY. Tenant shall at all times comply with
the rules and regulations of the utility supplying electricity to the Building.
Tenant shall not use any electrical equipment which, in Landlord's reasonable
judgment, would exceed
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the capacity of the electrical equipment serving the Premises or interfere with
the electrical service to other Building tenants. If Landlord determines that
Tenant's electrical requirements necessitate installation of any additional
equipment, or if Tenant requests that such additional equipment be installed,
Landlord shall, at Tenant's expense, install such additional equipment provided
that Landlord, in its reasonable judgment, considering the potential needs of
present and future Building tenants and of the Building itself, determines that
(i) such installation is practicable, (ii) such additional feeders or risers are
necessary and permissible under applicable laws and insurance regulations, and
(iii) the installation of such feeders of risers will not cause permanent damage
or injury to the Building or the Premises, cause or create a dangerous or
hazardous condition, entail excessive or unreasonable alterations, interfere
with or disturb other tenants or occupants of the Building or exceed the limits
of the switchgear. Any reasonable costs incurred by Landlord in connection
therewith shall be paid by Tenant within 15 days after the rendition of a bill
therefor. Tenant shall not make or perform, or permit the making or performance
of, any Alterations to wiring installations or other electrical facilities in or
serving the Premises or any additions to the office equipment or other
appliances in the Premises which utilize electrical energy (other than ordinary
small office equipment) without the prior consent of Landlord, in each instance,
and in compliance with this Lease.
(b) Notwithstanding the foregoing, Landlord shall at the request of
Tenant prior to September 30, 1996 upgrade the risers serving the Premises and
install any related switching equipment so that the risers shall be capable of
supplying a demand load of eight watts of electricity per rentable square foot
of the Premises without taking into account any electricity necessary to operate
the HVAC System. Tenant shall, at its election, pay to Landlord (x) the cost of
making such upgrade and installing such switching equipment or (y) monthly with
Fixed Rent the cost of making such upgrade and installation amortized at 9
percent per annum over the unexpired Term upon completion thereof. Tenant shall
notify Landlord of such election prior to the completion of such upgrade and
installation. In upgrading the risers, Landlord shall obtain bids from at least
two electrical contractors, provided, however, that Landlord shall be entitled
to select the wiring contractor based on whatever criteria it deems relevant in
its reasonable judgment, provided further, however that Landlord shall select
the contractor with the lowest bid in the event that all other criteria for
selection are comparable.
Section 16.3 SERVICE DISRUPTION. Landlord shall not be liable in any way to
Tenant for any failure, defect or interruption of; or change in the supply,
character and/or, quantity of electric service furnished to the Premises for any
reason except if attributable to the gross negligence or willful misconduct of
Landlord, nor shall such failure, defect, interruption or change constitute an
actual or constructive eviction, in whole or part, or entitle Tenant to any
abatement or diminution in rent, or relieve Tenant from any of its Lease
obligations, whether electricity is provided by public or private utility or by
any electricity generation system owned and operated by Landlord.
Section 16.4 DISCONTINUANCE OF SERVICE. Landlord reserves the right to
discontinue furnishing electricity to Tenant in the Premises. If Landlord
exercises such
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right, or is compelled to discontinue furnishing electricity to Tenant, this
Lease shall continue in full force and effect and shall be unaffected thereby.
If Landlord so discontinues furnishing electricity, Tenant shall arrange to
obtain electricity directly from any utility company serving the Premises to the
extent that the same is available, suitable and safe for such purposes. All
equipment which may be required to obtain electricity of substantially the same
quantity, quality and character shall be installed by Landlord at the sole cost
and expense of (i) Landlord, if Landlord voluntarily discontinues such service,
(ii) Tenant, if Landlord is compelled to discontinue such service to a portion
or the whole of the Premises (but not to any other space in the Building) by the
public utility or pursuant to governmental regulation or law or if such
discontinuance arises out of the acts of omissions or Tenant, as and to the
extent provided in the next succeeding sentence and (iii) Landlord and Tenant in
equal shares, if Landlord is compelled to discontinue such service to the entire
Building by the public utility or pursuant to government regulation or law, as
and to the extent provided in the next succeeding sentence in the case of Tenant
and subject to recoupment under Article 8 in the case of Landlord. Tenant shall
pay to Landlord as Additional Rent in equal monthly installments an amount equal
to Landlord's costs in installing all such equipment which may be required for
Tenant to obtain electricity amortized at the Interest Rate in effect upon the
completion thereof over the useful economic life of the improvements made in
connection therewith as reasonably estimated by Landlord, subject to any
applicable limitation upon the amount that Tenant is obligated to pay contained
in the preceding sentence. Landlord shall, to the extent permitted by applicable
law, not voluntarily discontinue furnishing electricity to Tenant until Tenant
is able to receive electricity directly from the public utility or other company
servicing the Building unless the public utility or other company is not
prepared to furnish electricity to the Premises on the date required as a result
of Tenant's delay or negligence in arranging for service or Tenant's refusal to
provide the utility company with a deposit or other security requested by the
utility company or Tenant's refusal to take other actions requested by the
utility company.
ARTICLE 17
ACCESS TO PREMISES
------------------
Section 17.1 (a) LANDLORD'S ACCESS. Tenant shall permit Landlord,
Landlord's agents and public utility service providers servicing the Building
upon reasonable prior notice to erect, use and maintain concealed ducts, pipes
and conduits in and through the Premises provided such use does not cause the
usable area of the Premises to be reduced beyond a de minimis amount not to
exceed 500 rentable square feet. All work performed under this Section 17.1
shall be performed with reasonable diligence and in a manner so as to minimize
disturbance of Tenant's business and otherwise in accordance with Section 7.4 of
this Lease. Landlord shall promptly repair any damage to the Premises or
Tenant's Property caused by any work performed pursuant to this Article.
(b) Landlord and Landlord's agents shall have the right to enter the
Premises at all reasonable times upon reasonable notice (which notice may be
oral) except in the case of emergency, to examine the Premises, to show it to
prospective
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purchasers, Mortgagees, Lessors or lessees of the Building and their respective
agents and representatives or to others, and to make such repairs, alterations
or additions to the Premises or the Building (i) as Landlord may deem necessary
or desirable, (ii) which Landlord may elect to perform following Tenant's
failure to perform, or (iii) to comply with any Requirements, and Landlord shall
be allowed to take all material into the Premises that may be required for the
performance of such work without the same constituting an actual or constructive
eviction of Tenant in whole or in part and without any abatement of Rent. In
entering the Premises as above provided, Landlord shall use reasonable efforts
to minimize interference with Tenant's use and occupancy of the Premises.
Section 17.2 FINAL 12 MONTHS. If, during the last 12 months of the Term,
Tenant removes all or substantially all of Tenant's Property from the Premises,
Landlord may, upon prior notice (which notice may be oral) and at reasonable
hours, renovate and/or redecorate the Premises, without abatement of any Rent or
incurring any liability to Tenant. Such acts shall not be deemed an actual or
constructive eviction and shall have no effect upon this Lease.
Section 17.3 ALTERATIONS TO BUILDING. Landlord has the right to (i) change
the name, number or designation by which the Building is commonly known and (ii)
alter the Building to change the arrangement or location of entrances or
passageways, doors and doorways, and corridors, elevators, stairs, toilets, or
other public parts of the Building without any such acts constituting an actual
or constructive eviction and without incurring any liability to Tenant, so long
as such changes do not deprive Tenant of reasonable access to the Premises. All
parts (except surfaces facing the interior of the Premises) of all walls,
windows and doors bounding the Premises (including exterior Building walls,
exterior core corridor walls, exterior doors and entrances other than doors and
entrances solely servicing the Premises), all terraces and roofs adjacent to the
Premises, all space in or adjacent to the Premises used for shafts, stacks,
stairways and other mechanical facilities, Building Systems and Building
facilities are not part of the Premises, and Landlord shall have the use thereof
and access thereto through the Premises for the purposes of Building operation,
maintenance, alteration and repair.
Section 17.4 ABATEMENT. If due to any work or installation performed by
Landlord hereunder or failure by Landlord to perform its obligations hereunder,
(a) Tenant shall be unable for at least five consecutive Business Days to
operate its business in the premises, (b) such interruption shall occur during
business hours and (c) Tenant shall have been unable, after using reasonable
efforts, to relocate its employees and property located in that portion of the
Premises which is the subject to such work or installation or such failure to
another portion of the Premises so as to have been able to have continued so to
operate its business, the Fixed Rent and the Additional Rent shall be reduced on
a per diem basis in the proportion in which the area of the part of the Premises
which is unusable bears to the total area of the Premises for each day
subsequent to the aforesaid five days period that such portion of the Premises
remains unusable.
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ARTICLE 18
DEFAULT
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Section 18.1 TENANT'S DEFAULTS. Each of the following events shall be an
"Event of Default" hereunder:
(i) Failure by Tenant to pay when due any installment of Fixed
Rent or Additional Rent and such default shall continue for three Business Days
after notice of such default is given to Tenant, or failure to pay when due of
any other item of Rent and such default shall continue for seven Business Days
after notice of such default is given to Tenant, except that if Landlord shall
have given three such notices of default in the payment of any Rent in any
twelve month period, Tenant shall not be entitled to any further notice of its
delinquency in the payment of any Rental or an extended period in which to make
payment until such time as twelve consecutive months shall have elapsed without
Tenant having failed to make any such payment when due, and the occurrence of
any default in the payment of any Rent within such twelve month period after the
giving of two such notices shall constitute an Event of Default: or
(ii) Failure by Tenant to observe or perform any other term,
covenant or condition of this Lease to be observed or performed by Tenant and if
such failure continues for more than 20 days after notice by Landlord to Tenant
of such default, or if such default is of such a nature that it cannot
reasonably be completely remedied within 20 days, failure by Tenant to commence
to remedy such failure within said 20 days, and thereafter diligently prosecute
to completion all steps necessary to remedy such default, subject to delay by
reason of strikes, labor trouble or any other similar causes beyond Tenant's
control other than Tenant's financial condition; or
(iii) Intentionally Omitted.
(iv) Tenant's interest in this Lease shall devolve upon or
pass to any person, whether by operation of law or otherwise, except as
expressly permitted under Article 15 hereof; or
(v) AKC or MLA admits in writing its inability to pay its
debts as they become due; or
(vi) AKC or MLA files a voluntary petition in bankruptcy or
insolvency, or is adjudicated a bankrupt or insolvent, or files any petition or
answer seeking any reorganization, liquidation, dissolution or similar relief
under any present or future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or makes an assignment
for the benefit of creditors or seeks or consents to or acquiesces in the
appointment of any trustee, receiver, liquidator or other similar official for
AKC or MLA or for all or any part of AKC's or MLA's property; or
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(vii) if, within 60 days after the commencement of any
proceeding against AKC or MLA, whether by the filing of a petition or otherwise,
seeking bankruptcy, insolvency, reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, such proceeding shall not have been
dismissed, or if, within 60 days after the appointment of any trustee, receiver,
liquidator or other similar official for AKC or MLA or for all or any part of
AKC's or MLA's property, without the consent or acquiescence of AKC or MLA, as
the case may be, such appointment shall not have been vacated or otherwise
discharged, or if any lien, execution or attachment or other similar filing
shall be made or issued against AKC or MLA or any of AKC's or MLA's property
pursuant to which the Premises shall be taken or occupied or attempted to be
taken or occupied by someone other than AKC or MLA.
Upon the occurrence of any one or more of such Events of Default, Landlord
may, at its sole option, give to Tenant three days' notice of cancellation of
this Lease, in which event this Lease and the Term shall come to an end and
expire (whether or not the Term shall have commenced) upon the expiration of
such three day period with the same force and effect as if the date of
expiration of such three days were the Expiration Date stated herein; and Tenant
shall then quit and surrender the Premises to Landlord, but Tenant shall remain
liable for damages as provided in Article 19 hereof.
Section 18.2 TENANT'S LIABILITY. If, at any time, (a) Tenant shall be
comprised of two or more persons, (b) Tenant's obligations under this Lease
shall have been guaranteed by any person other than Tenant, or (c) Tenant's
interest in this Lease shall have been assigned, the word "Tenant," as used in
Section 18.1(v), (vi) and (vii), 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 proceeding of the types referred to in this Article shall be
deemed paid as compensation for the use and occupancy 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 this
Lease.
ARTICLE 19
REMEDIES AND DAMAGES
--------------------
Section 19.1 (a) LANDLORD'S REMEDIES. If any Event of Default occurs, and
this Lease and the Term expire and come to an end as provided in Article 18:
(i) SURRENDER OF POSSESSION. Tenant shall quit and surrender
the Premises to Landlord, and Landlord and its agents may immediately, or at any
time after such Event of Default, re-enter the Premises or any part thereof,
without notice, either by summary proceedings, or by any other applicable action
or proceeding, using any lawful process (without being liable to indictment,
prosecution or damages therefor),
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and may repossess the Premises and dispossess Tenant and any other persons from
the Premises and remove any and all of their property and effects from the
Premises.
(ii) LANDLORD'S RELETTING. Landlord, at Landlord's option, may
relet all or any part of the Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for any term ending before, on
or after the Expiration Date, at such rental and upon such other conditions
(which may include concessions and free rent periods) as Landlord, in its sole
discretion, may determine. Landlord shall have no obligation to and shall not be
liable for refusal or failure to relet or, in the event of any such reletting,
for refusal or failure to collect any rent due upon any such reletting, and no
such refusal or failure shall relieve Tenant of, or otherwise affect, any
liability under this Lease. Landlord, at Landlord's option, may make such
alterations, decorations and other physical changes in and to the Premises as
Landlord, in its sole discretion, considers advisable or necessary in connection
with such reletting or proposed reletting, without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability.
(b) TENANT'S WAIVER. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including all creditors, hereby waives
all rights which Tenant and all such persons might otherwise have under any
Requirement (i) to the service of any notice of intention to re-enter or to
institute legal proceedings, (ii) to redeem, or to re-enter or repossess the
Premises, or (iii) to restore the operation of this Lease, after (A) Tenant
shall have been dispossessed by judgment or by warrant of any court or judge,
(B) any re-entry by Landlord, or (C) any expiration or early termination of the
term of this Lease, whether such dispossess, re-entry, expiration or termination
shall be by operation of law or pursuant to the provisions of this Lease. 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.
(c) TENANT'S BREACH. Upon the 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 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
rights to invoke the remedies set forth above are cumulative and shall not
preclude Landlord from invoking any other remedy allowed at law or in equity.
Section 19.2 (a) LANDLORD'S DAMAGES. If this Lease and the Term expire and
come to an end as provided in Article 18, or by or under any summary proceeding
or any other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 19.1, then, in any of such events:
(i) Tenant shall pay to Landlord all Fixed Rent, all sums
payable pursuant to Article 8 of this Lease (including Tenant's Tax Payment and
Tenant's Operating Payment) and all other items of Rent payable under this Lease
by
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Tenant to Landlord up to the Expiration Date or to the date of re-entry upon the
Premises by Landlord, as the case may be;
(ii) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as advance Rent, Security Deposit or
otherwise, which monies, to the extent not otherwise applied to amounts due and
owing to Landlord, shall be credited by Landlord against any damages payable by
Tenant to Landlord;
(iii) Tenant shall pay to Landlord, in monthly installments,
on the days specified in this Lease for payment of installments of Fixed Rent,
any Deficiency; it being understood that Landlord shall be entitled to recover
from Tenant each month, the 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
(iv) whether or not Landlord shall have collected any monthly
Deficiency, Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency and as liquidated and agreed final damages, a sum equal to the amount
by which the Rent for the period which otherwise would have constituted the
unexpired portion of the Term (assuming the Additional Rent during such period
to be the same as was payable for the year immediately preceding such
termination or re-entry), increased in each succeeding year by four percent (on
a compounded basis) exceeds the then fair and reasonable rental value of the
Premises, for the same period (with both amounts being discounted to present
value at a rate of interest equal to two percent below the then Base Rate) less
the aggregate amount of Deficiencies theretofore collected by Landlord pursuant
to the provisions of Section 19.2(a)(iii) for the same period. 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 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 deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the reletting.
(b) If the Premises, or any part thereof, shall be relet together with
other space in the Building, the rents collected or reserved under any such
reletting and the expenses of any such reletting shall be suitably apportioned
for the purposes of this Section 19.2. Tenant shall not be entitled to any rents
collected or payable under any reletting, whether or not such rents exceed the
Fixed Rent reserved in this Lease. Nothing contained in Articles 18 or 19 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 Requirement, or of any
sums or damages to which Landlord may be entitled in addition to the damages set
forth in this Section 19.2.
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ARTICLE 20
FEES AND EXPENSES
-----------------
If (a) Tenant (i) defaults under this Lease and the same shall
constitute an Event of Default, or (ii) knowingly does or permits to be done
anything which would cause Landlord to be in default under any Superior Lease or
Mortgage, or (iii) fails to comply with its obligations under this Lease and in
the reasonable judgment of Landlord such default or failure would affect the
preservation of property or the safety of any tenant, occupant or other person
is threatened, Landlord may perform such obligation for the account of Tenant
and make any reasonable expenditure and incur any reasonable expense for the
account of Tenant to remedy such condition. All amounts expended or incurred by
Landlord in connection with the foregoing, including reasonable attorneys' fees
and disbursements incurred in instituting, prosecuting or defending any action
or proceeding or recovering possession with interest thereon at the Interest
Rate, shall be paid by Tenant to Landlord within 15 days after rendition of a
bill herefor to Tenant.
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL
---------------------------------------------------
Section 21.1 NO REPRESENTATIONS. Except as expressly set forth herein,
Landlord and Landlord's agents have made no warranties, representations,
statements or promises with respect to the Building, the Real Property or the
Premises and no rights, easements or licenses are acquired by Tenant by
implication or otherwise. This Lease contains the entire agreement between the
parties and all understandings and agreements previously made between Landlord
and Tenant are merged in this Lease, which alone fully and completely expresses
their agreement. Landlord and Tenant enter into this Lease after full
investigation, with neither party relying upon any statement or representation
made by the other not embodied in this Lease.
Section 21.2 WRITTEN APPROVAL. All references in this Lease to the consent
or approval of Landlord mean the written consent or approval of Landlord, duly
executed by Landlord.
Section 21.3 NO MONEY DAMAGES. Wherever in this Lease Landlord's consent or
approval is required, if Landlord refuses to grant such consent or approval,
whether or not Landlord expressly agreed that such consent or approval would not
be unreasonably withheld, Tenant shall not make, and Tenant hereby waives, any
claim for money damages (including any claim by way of set-off, counterclaim or
defense) based upon Tenant's claim or assertion that Landlord unreasonably
withheld or delayed its consent or approval. Tenant's sole remedy shall be an
action or proceeding to enforce such provision, by specific performance,
injunction or declaratory judgment. Notwithstanding anything contained in this
Section 21.3 to the contrary, Tenant shall have the right to submit to
arbitration in accordance with Section 15.14 hereof any dispute in respect of
whether Landlord has unreasonably withheld or delayed any consent or approval to
any
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assignment or subletting requested by Tenant hereunder, in which event Landlord
shall have no liability to Tenant whatsoever and Tenant hereby releases Landlord
from any such liability for malice, bad faith or otherwise (if and however,
determined), and Tenant's sole remedy shall be that, upon the decision of the
arbitrator(s) that consent was unreasonably withheld or delayed, the requested
consent or approval shall be deemed to have been granted as provided above
without any further proceedings or any action being required.
Section 21.4 VIBRATIONS. Tenant recognizes and acknowledges that the
operation of the Building equipment may cause vibration or noise which may be
transmitted throughout the Premises. Landlord shall have no obligation to
endeavor to reduce such vibration or noise beyond that which is prevalent in the
Building.
ARTICLE 22
END OF TERM
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Section 22.1 EXPIRATION. Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender to Landlord the Premises, vacant, broom
clean and in good order and condition, ordinary wear and tear and damage for
which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property and Tenant's Alterations as may be
required pursuant to Article 5 of this Lease. The foregoing obligation shall
survive the expiration or sooner termination of the Term. If the last day of the
Term or any renewal thereof falls on Saturday or Sunday, this Lease shall expire
on the immediately preceding Business Day.
Section 22.2 HOLDOVER RENT. Landlord and Tenant recognize that the damage
to Landlord resulting from any failure by Tenant to timely surrender possession
of the Premises may be substantial, may exceed the amount of the Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord within 24 hours after the Expiration Date or sooner termination of the
Term, in addition to any other rights or remedies Landlord may have hereunder or
at law, Tenant shall pay to Landlord for each month (or any portion thereof)
during which Tenant holds over in the Premises after the Expiration Date or
sooner termination of this Lease, a sum equal to one and one-half times, in the
case of the first month, and two times, in the case of any subsequent month, the
Rent payable under this Lease for the last full calendar month of the Term.
Therefore, Tenant shall pay to Landlord for (a) the first month (or any portion
thereof) during which Tenant holds over one and one-half times the Rent, payable
under this Lease for the last full calendar month of the Term and (b) for each
subsequent month (or any portion thereof) during which Tenant holds over, a sum
equal to two times the Rent payable under this Lease for the last full calendar
month of the Term. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or sooner
termination of this Lease and no acceptance by Landlord of payments from Tenant
after the Expiration Date or sooner termination of the Term shall be deemed to
be other than on account of the amount to be paid by Tenant in accordance
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with the provisions of this Article 22. Tenant's obligations under this Article
shall survive the expiration or earlier termination of this Lease.
Section 22.3 WAIVER OF STAY. Tenant expressly waives, for itself and for
any person claiming through or under Tenant, any rights which Tenant or any such
person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article 22.
ARTICLE 23
QUIET ENJOYMENT
---------------
Provided this Lease is in full force and effect and no Event of Default
then exists, Tenant may peaceably and quietly enjoy the Premises without
hindrance by Landlord or any person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease and all Superior Leases and
Mortgages.
ARTICLE 24
NO WAIVER; NO COUNTERCLAIM
--------------------------
Section 24.1 NO MODIFICATIONS OR RELEASE. No act or thing done by Landlord
or Landlord's agents or employees during the Term shall be deemed an acceptance
of a surrender of the Premises, and no provision of this Lease shall be deemed
to have been waived by Landlord, unless such waiver is in writing and is signed
by Landlord, and any such waiver shall be effective only for the specific
purpose and in the specific instance in which given. If Tenant at any time
desires to have Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive Tenant's keys to the Premises for
such purpose without releasing Tenant from any of the obligations under this
Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
Section 24.2 NO WAIVER. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment for the future performance of such
obligations of the Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or Omission. The receipt by
Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Fixed Rent or Additional Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest stipulated Fixed
Rent or Additional Rent, or as Landlord may elect to apply same, nor shall any
endorsement or statement on any check
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or any letter accompanying any check or payment as Fixed Rent or Additional 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
Fixed Rent or Additional Rent or pursue any other remedy provided in this Lease.
The existence of a right of renewal or extension of this Lease, or the exercise
of such right, shall not limit Landlord's right to terminate this Lease in
accordance with the terms hereof, or create any option for further extension or
renewal of this Lease.
ARTICLE 25
WAIVER OF TRIAL BY JURY
-----------------------
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE. If Landlord
commences any summary proceeding against Tenant, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding (unless
failure to impose such counterclaim would preclude Tenant from asserting in a
separate action the claim which is the subject of such counterclaim), and will
not seek to consolidate such proceeding with any other action which may have
been or will be brought in any other court by Tenant.
ARTICLE 26
INABILITY TO PERFORM
--------------------
This Lease and the obligation of Tenant to pay Rent and to perform all of
the other covenants and agreements of Tenant hereunder shall not be affected,
impaired or excused by any Unavoidable Delays. Landlord shall use diligent
efforts to promptly notify Tenant of any Unavoidable Delay which prevents
Landlord from fulfilling any of its obligations under this Lease.
ARTICLE 27
BILLS AND NOTICES
-----------------
Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
under this Lease shall be in writing and shall be deemed sufficiently given or
rendered if delivered by hand (provided a signed receipt is obtained) or if sent
by registered or certified mail (return receipt requested) or by a nationally
recognized overnight delivery service making receipted deliveries, addressed as
follows:
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if to Tenant, (a) at Tenant's address set forth in the heading
of this Lease, Attn: Beverly I. Katz if mailed prior to Tenant's taking
possession of the Premises, or (b) at the Building, Attn: Beverly I.
Katz if mailed subsequent to Tenant's taking possession of the
Premises, or (c) 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 and (d) with a copy
to Newman Tannenbaum Helpern Syracuse & Hirschtritt LLP at 900 Third
Avenue, New York, New York 10022-4775, Attention: Joel S. Hirschtritt,
Esq., or
if to Landlord, at Landlord's address set forth in this Lease,
Attn: Chief Financial Officer, and with copies to (v) Tishman Speyer
Properties L.P., 520 Madison Avenue, New York, New York 10022, Attn:
Property Manager - 520 Madison Avenue, (w) Tishman Speyer Properties
L.P., 520 Madison Avenue, New York, New York 10022, Attn: General
Counsel, (x) Tishman Speyer Properties L.P., 11 West 42nd Street, New
York, New York 10036, Attn: Head of Management Department and (y) any
Mortgagee or Lessor which shall have requested copies of notices, by
notice given to Tenant in accordance with the provisions of this
Article 27 at the address designated by such Mortgagee or Lessor, or to
such other address(es) as either Landlord or Tenant or any Mortgagee or
Lessor may designate as its new address(es) for such purpose by notice
given to the other in accordance with the provisions of this Article
27.
Any such bill, statement, consent, notice, demand, request or other
communication shall be deemed to have been given on the date of receipted
delivery or refusal to accept delivery or three Business Days after it shall
have been mailed as provided in this Article 27.
ARTICLE 28
RULES AND REGULATIONS
---------------------
Tenant and Tenant's contractors, employees, agents, visitors and licensees
shall observe and comply with the Rules and Regulations, as supplemented or
amended from time to time, provided, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations as originally promulgated or as supplemented or amended from time to
time, the provisions of this Lease shall control. Landlord reserves the right,
from time to time (subject to the right of Tenant to dispute the reasonableness
thereof), to adopt additional Rules and Regulations and to amend the Rules and
Regulations then in effect. If Tenant disputes the reasonableness of any Rule or
Regulation hereafter adopted by Landlord, the dispute shall be resolved by
arbitration in accordance with the provisions of Section 15.14 hereof, provided,
however, that during the pendency of any such arbitration, Tenant shall comply
with such Rule or Regulation. Tenant's right to dispute the reasonableness of
any additional Rule or Regulation shall be deemed waived unless Tenant shall
notify Landlord of such dispute within five days after delivery to Tenant of a
notice of the adoption of any such additional
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Rule or Regulation. Nothing contained in this Lease shall impose upon Landlord
any obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease against any other Building tenant and Landlord
shall not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, visitors or licensees, except that Landlord shall not enforce
any Rule or Regulation against Tenant in a discriminatory fashion and which
Landlord shall not then be enforcing against all other office tenants in the
Building (other than Landlord and its affiliates) to the extent such rule or
regulation is applicable.
ARTICLE 29
PARTNERSHIP TENANT
------------------
Section 29.1 PARTNERSHIP TENANT. If Tenant, or a permitted assignee of this
Lease pursuant to Article 15 hereof, is a partnership, or is comprised of two or
more persons, individually or as co-partners of a partnership (any such
partnership and such persons are referred to in this Article as "Partnership
Tenant"), the following shall apply: (a) the liability of each of the general
partners 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, any written instrument which may hereafter be executed by
Partnership Tenant or any of the parties comprising Partnership Tenant, which
shall modify, extend or discharge this Lease, in whole or in part, or surrender
all or any part of the Premises to Landlord; (c) any bills, statements, notices,
demands, requests or other communications given or rendered to Partnership
Tenant or to any of such parties shall be binding upon Partnership Tenant and
all such parties; (d) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed joint and several liability for the performance of all of the
terms, covenants and conditions of this Lease on Tenants part to be observed and
performed; (e) Partnership Tenant shall give prompt notice to Landlord of the
admission of any such new partners, and upon demand of Landlord, shall cause
each such new partner to execute and deliver to Landlord an agreement in form
and substance satisfactory to Landlord, wherein each such new partner shall
assume joint and several liability for the 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 Section 29.1(d)); and (f) no change in
the partners of Partnership Tenant resulting from the admission of a new
partner, or the death, retirement or withdrawal of a partner shall release
Partnership Tenant or any partner or former partner from their obligations under
this Lease.
Section 29.2 CHANGE OF PARTNERS. If Tenant is a partnership, (i) the
admission of new partners, the withdrawal (in the ordinary course of business),
retirement, death, incompetency or bankruptcy of any partner, or the
reallocation of partnership interests among the partners of Tenant (the
"Partners") shall not constitute an assignment of this Lease provided that at
least 50 percent of the partners remain as Partners for any consecutive 12 month
period and (ii) the reorganization of Tenant into a professional
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corporation or the reorganization of Tenant from a professional corporation into
a partnership or a limited liability company, shall not constitute an assignment
of this Lease, provided that immediately following such reorganization the
partners or shareholders, as the case may be, of Tenant shall be the same as
those existing immediately prior to such reorganization and subject to the
provisions of the remainder of this Section. Notwithstanding the foregoing, the
allocation or reallocation on one or more occasions of partnership interests of
Tenant among the current partners, Tomio Taki and/or Frank Mori and/or the
estates, the heirs, and/or the members of the immediate families of Tomio Taki
and/or Frank Mori or trusts established for the benefit of any of them shall not
be deemed to be an assignment of this Lease. If Tenant shall become a
professional corporation, each individual shareholder, shareholder-employee, new
individual shareholder and new shareholder-employee of any professional
corporation which is a shareholder in Tenant shall have the same personal
liability as such individual or shareholder-employee would have under this Lease
if Tenant were a partnership and such individual or shareholder-employee were a
Partner or admitted as a new Partner. If any individual Partner in Tenant is or
becomes a shareholder-employee of a professional corporation, such individual
shall have the same personal liability under this Lease as such individual would
have if he and not the professional corporation were a Partner of Tenant.
Section 29.3 LIMITED RECOURSE. Notwithstanding anything in this Lease to
the contrary, Tenant's liability under the terms of this Lease shall be limited
to the assets of Tenant (not including any right of contribution Tenant may have
against any partners of Tenant) and Landlord shall look solely to such assets
(together with any Letter of Credit and/or other security delivered pursuant to
Article 36) for the recovery of any judgment against Tenant arising out of or in
any way connected with the failure to perform the obligations of Tenant under
this Lease, the relationship of Landlord and Tenant or the use and occupancy of
the Premises. The provisions of this Section 29.3 are for the benefit of Tenant
alone and no successor thereof by assignment, transfer or otherwise.
ARTICLE 30
VAULT SPACE
-----------
Notwithstanding anything contained in this Lease or indicated on any
sketch, blueprint or plan, no vaults, vault space or other space outside the
boundaries of the Real Property are included in the Premises. Landlord makes no
representation as to the location of the boundaries of the Real Property. All
vaults and vault space and all other space outside the boundaries of the Real
Property which Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license. If any such license shall be revoked, or if
the amount of such space shall be diminished as required by any Governmental
Authority or by any public utility company, such revocation, diminution or
requisition shall not (i) constitute an actual or constructive eviction, in
whole or in part, (ii) entitle Tenant to any abatement or diminution of Rent,
(iii) relieve Tenant from any of its obligations under this Lease, or (iv)
impose any liability upon Landlord. Any fee, tax
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or charge imposed by any Governmental Authority for any such vault, vault space
or other space occupied by Tenant shall be paid by Tenant.
ARTICLE 31
BROKER
------
Section 31.1 BROKER REPRESENTATIONS. Landlord has retained Cushman &
Wakefield, Inc. as leasing agent in connection with this Lease and Landlord will
be solely responsible for any fee that may be payable to Cushman & Wakefield,
Inc. Landlord agrees to pay a commission to Broker pursuant to a separate
agreement. Each of Landlord and Tenant represents and warrants to the other that
it has not dealt with any broker in connection with this Lease other than the
Broker and that to the best of its knowledge and belief, no other broker, finder
or like entity procured or negotiated this Lease or is entitled to any fee or
commission in connection herewith. The execution and delivery of this Lease by
each party shall be conclusive evidence that each party has relied upon the
foregoing representations and warranties.
Section 31.2 BROKER INDEMNITY. Each of Landlord and Tenant shall indemnify,
defend and hold the other party harmless from and against any and all costs
expenses, claims and liabilities (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason of any claim of
or liability to any broker, finder or like agent (other than Broker) arising out
of any dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, and/or the above representation being
false. The provisions of this Article 31 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 32
INDEMNITY
---------
Section 32.1 (a) TENANT'S INDEMNITY. Tenant shall not do or permit to be
done any act or thing upon the Premises which may subject Landlord to any
liability or responsibility for injury, damage to persons or property or to any
liability by reason of any violation of law or of any Requirement, and shall
exercise such control over the Premises as to fully protect Landlord against any
such liability. Tenant shall indemnify, defend, protect and hold harmless each
and all of the Indemnitees from and against any and all Losses (as defined in
subsection (c) hereof), resulting from any claims (i) against Indemnitees
arising from any act, omission or negligence of Tenant, its contractors,
licensees, agents, servants, employees, invitees or visitors, (ii) against the
Indemnitees arising from any accident, injury or damage whatsoever caused to any
person or to the property of any person and occurring during or (if Tenant shall
continue to use and occupy the Premises) after the expiration of the Term, in or
about the Premises, and (iii) against the Indemnitees resulting from any breach,
violation or nonperformance of any covenant, condition or agreement of this
Lease on the part of Tenant to be fulfilled, kept, observed and performed.
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(b) LANDLORD'S INDEMNITY. Except as otherwise provided herein, Landlord
shall indemnify, defend and hold harmless Tenant, its contractors, licensees,
agents, servants, employees, invitees and visitors from and against all claims
against Tenant arising from direct damage to the Premises and any bodily injury
to Tenant's employees, agents, visitors and invitees or damage to the property
of any person resulting from the acts, omissions or negligence of Landlord, its
servants, agents and employees within or about the common or public areas of the
Building (specifically excluding the Premises).
(c) INDEMNITY INCLUSIONS. For purposes of this Article 32, the term
"Losses" means any and all losses, liabilities, damages, fines, suits, demands,
costs and expenses of any kind or nature (including reasonable attorneys' fees
and disbursements) incurred in connection with any claim or proceeding to which
a particular indemnity and hold harmless agreement applies and the defense
thereof.
Section 32.2 DEFENSE AND SETTLEMENT. If any claim, action or proceeding is
made or brought against any party entitled to indemnification hereunder, then,
upon demand by the indemnified party, the indemnifying party, at its sole cost
and expense, shall resist or defend such claim, action or proceeding in the
indemnified party's name (if necessary), by attorneys approved by the
indemnified party, which approval shall not be unreasonably withheld. Attorneys
for the indemnifying party's insurer shall hereby be deemed approved for
purposes of this Section 32.2. Notwithstanding the foregoing, an indemnified
party may retain its own attorneys to participate or assist in defending any
claim, action or proceeding involving potential liability of $5,000,000 or more,
provided that the indemnifying party shall control the defense and the
indemnifying party shall pay the reasonable fees and disbursements of such
attorneys. Notwithstanding anything herein contained to the contrary, the
indemnifying party may direct the indemnified party to settle any claim, suit or
other proceeding provided that (i) such settlement shall involve no obligation
on the part of the indemnified party other than the payment of money, (ii) any
payments to be made pursuant to such settlement shall be paid in full
exclusively by the indemnifying party at the time such settlement is reached,
(iii) such settlement shall not require the indemnified party to admit any
liability, and (iv) the indemnified party shall have received an unconditional
release from the other parties to such claim, suit or other proceeding. The
provisions of this Article 32 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 33
ADJACENT EXCAVATION; SHORING
----------------------------
If an excavation shall be made, or shall be authorized to be made, upon
land adjacent to the Real Property, Tenant shall, upon notice, 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 such person shall deem necessary
to preserve the wall or the Building from injury or damage and to support the
same by proper foundations. In connection with such license, Tenant shall have
no right to claim any damages or indemnity against
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Landlord, or diminution or abatement of Rent provided that Tenant shall continue
to have access to the Premises.
ARTICLE 34
MISCELLANEOUS
-------------
Section 34.1 DELIVERY. This Lease shall not be binding upon Landlord or
Tenant unless and until Landlord and Tenant shall both have executed and
delivered a fully executed copy of this Lease to each other.
Section 34.2 TRANSFER OF REAL PROPERTY. Landlord's obligations under this
Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer (collectively a "Transfer") by such Landlord
(or upon any subsequent landlord after the Transfer by such subsequent landlord)
of its interest in the Building or the Real Property, as the case may be, and in
the event of any such Transfer, Landlord shall be entirely freed and relieved of
all covenants and obligations of Landlord hereunder, and the transferee of
Landlord's interest in the Building or the Real Property, as the case may be,
shall be deemed to have assumed all obligations under this Lease thereafter
arising; provided that, if the transferee of Landlord's interest in the Building
or the Real Property, as the case may be, shall assume all obligations under
this Lease ab initio, the transferring Landlord shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder
whenever arising. Absent such an assumption ab initio, the transferring Landlord
shall remain liable for covenants, and obligations of Landlord arising prior to
such sale, conveyance, assignment or transfer while such transferring Landlord
owned the Building or the Real Property, as the case may be, but only to the
extent of the net proceeds received by the Landlord from such sale, conveyance,
assignment or transfer.
Section 34.3 LIMITATION ON LIABILITY. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
in the Real Property and Tenant shall not look to any other property or assets
of Landlord or the property or assets of any partner, shareholder, director,
officer, principal, employee or agent, directly and indirectly, of Landlord
(collectively, 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; and none of the Parties shall be personally liable for
the performance of Landlord's obligations under this Lease.
Section 34.4 RENT. Notwithstanding anything to the contrary contained in
this Lease, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent, Tenant's Tax Payment,
Tenant's Operating Payment, Additional Rent or Rent, shall constitute rent for
the purposes of Section 502(b)(6) of the United States Bankruptcy Code.
Section 34.5 REIMBURSEMENT FOR TENANT'S DEFAULT. Tenant shall reimburse
Landlord, within twenty days after rendition of a statement, for all
expenditures made by,
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or damages or fines sustained or incurred by, Landlord due to any default by
Tenant under this Lease, with interest thereon at the Interest Rate.
Section 34.6 ENTIRE DOCUMENT. This Lease (including any Schedules and
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. All of the Schedules and
Exhibits attached hereto are incorporated in and made a part of this Lease,
provided that in the event of any inconsistency between the terms and provisions
of this Lease and the terms and provisions of the Schedules and Exhibits hereto,
the terms and provisions of this Lease shall control. Wherever appropriate in
this Lease, personal pronouns shall be deemed to include the other genders and
the singular to include the plural. All Article and Section references set forth
herein shall, unless the context otherwise requires, be deemed references to the
Articles and Sections of this Lease.
Section 34.7 GOVERNING LAW. This Lease shall be governed in all respects by
the laws of the State of New York. Section 34.8 UNENFORCEABILITY. If any
provision of this Lease, or its application to any person or circumstance, shall
ever be held to be invalid or unenforceable, then in each such event the
remainder of this Lease or the application of such provision to any other person
or any other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each provision hereof shall
remain valid and enforceable to the fullest extent permitted by law.
Section 34.9 (a) LEASE DISPUTES. Except as expressly provided to the
contrary in this Lease, Tenant agrees that all disputes arising, directly or
indirectly, out of or relating to this Lease, and all actions to enforce this
Lease, shall be dealt with and adjudicated in the state courts of the State of
New York or the federal courts sitting in New York City and for that purpose
hereby expressly and irrevocably submits itself to the jurisdiction of such
courts. Tenant agrees that so far as is permitted under applicable law, this
consent to personal jurisdiction shall be self-operative and no further
instrument or action, other than service of process in one of the manners
specified in this Lease, or as otherwise permitted by law, shall be necessary in
order to confer jurisdiction upon it in any such court.
(b) To the extent that Tenant has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, Tenant hereby
irrevocably waives such immunity in respect of its obligations under this Lease.
Tenant represents that it is not entitled to any such immunity on the date
hereof.
Section 34.10 LANDLORD'S AGENT. Unless Landlord shall render written notice
to Tenant to the contrary, Tishman Speyer Properties, L.P. is authorized to act
as Landlord's agent in connection with the performance of this Lease, and Tenant
shall direct all
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correspondence and requests to, and shall be entitled to rely upon
correspondence received from, Tishman Speyer Properties, L.P., as agent for the
Landlord in accordance with Article 27. Tenant acknowledges that Tishman Speyer
Properties, L.P. is acting solely as agent for Landlord in connection with the
foregoing; and neither Tishman Speyer Properties, L.P. nor any of its direct or
indirect partners, officers, shareholders, directors, employees, principals,
agents or representatives shall have any liability to Tenant in connection with
the performance of this Lease, and Tenant waives any and all claims against any
and all of such parties arising out of, or in any way connected with, this
Lease, the Building or the Real Property.
Section 34.11 ESTOPPEL. Within 10 days following request from Landlord, any
Mortgagee or any Lessor, Tenant shall deliver to Landlord a written statement
executed and acknowledged by Tenant, in form reasonably satisfactory to
Landlord, (i) stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which the Fixed Rent and any Additional Rent have been
paid, together with the amount of monthly Fixed Rent then payable, (iii) stating
whether or not, to the best of Tenant's knowledge, Landlord is in default under
this Lease, and, if Landlord is in default, setting forth the specific nature of
all such defaults, (iv) stating the amount of the security deposit, if any,
under this Lease, (v) stating whether there are any subleases affecting the
Premises, (vi) stating the address of Tenant to which all notices and
communication under the Lease shall be sent, the Commencement Date and the
Expiration Date, and (vii) responding to any other matters reasonably requested
by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that any
statement delivered pursuant to this Section 34.11 may be relied upon by any
purchaser or owner of the Real Property or the Building, or Landlord's interest
in the Real Property or the Building or any Superior Lease, or by any Mortgagee,
or assignee thereof of any Mortgagee of a Mortgage, or by any Lessor, or
assignor thereof. From time to time, within 10 days following a request by
Tenant, Landlord shall deliver to Tenant a written statement executed and
acknowledged by Landlord (i) stating that this Lease is then in full force and
effect and has not been modified (or, if modified, setting forth all
modifications), (ii) setting forth the date to which the Fixed Rent, all
Additional Rent and any other items of rental have been paid, (iii) stating
whether or not, to the best knowledge of Landlord, Tenant is in default under
this Lease, and, if Tenant is in default, setting forth the nature of all such
defaults, and stating whether or not to the best knowledge of Landlord any event
has occurred which with the giving of notice or passage of time, or both, would
constitute a default and if so, specifying same, and (iv) as to any other
matters reasonably requested by Tenant and related to this Lease.
Section 34.12 CERTAIN INTERPRETATIONAL RULES. For purposes of this Lease,
the phrase "including" shall mean "including without limitation" and whenever
the circumstances or the context requires, the singular shall be construed as
the plural, the masculine shall be construed as the feminine and/or the neuter
and vice versa. This Lease shall be interpreted and enforced without the aid of
any canon, custom or rule of law requiring or suggesting construction against
the party drafting or causing the drafting of the provision in question.
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Section 34.13 CAPTIONS. 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 or the intent of any provision thereof.
Section 34.14 PARTIES BOUND. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
Section 34.15 MEMORANDUM OF LEASE. This Lease shall not be recorded;
however, at Landlord's request, Landlord and Tenant shall promptly execute,
acknowledge and deliver a memorandum with respect to the Lease sufficient for
recording and Landlord may record such memorandum.
Section 34.16 DIRECTORY. The lobby shall contain a computerized directory
wherein the Building's tenants shall be listed with a capacity for up to 50
listings per floor for Tenant and others permitted to occupy the Premises
hereunder. From time to time, but not more frequently than once every three (3)
months, Landlord shall reprogram the computerized directory to reflect such
changes in the listings therein as Tenant shall request. Tenant's names shall be
placed in the Building's permanent display directory in the Building's lobby.
Section 34.17 JOINT AND SEVERAL OBLIGATIONS. Each and every obligation of
Tenant under this Lease shall be the joint and several and in solido obligation
of AKC and MLA, and default in performance by one of them shall in no way affect
the obligation of the other. The several obligations and liabilities of AKC and
MLA hereunder shall not be released, discharged or in any way affected by any
reorganization, arrangement, compromise, composition or plan affecting the other
or any change, waiver, extension, indulgence or other action or omission in
respect of any obligation of AKC or MLA, whether or not either AKC or MLA shall
have had any notice or knowledge of any of the foregoing. Each of AKC and MLA
hereby irrevocably appoints and authorizes the other to act as its agent
hereunder with full power and authority to act on its behalf in connection with
this Lease. Landlord shall be entitled to treat any notice from or consent or
approval of AKC or MLA as notice from or consent or approval of Tenant and any
documents delivered or payments made to AKC or MLA shall be deemed to be made to
Tenant.
Section 34.18 COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
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ARTICLE 35
TAX STATUS OF BENEFICIAL OWNERS
-------------------------------
Tenant recognizes and acknowledges that Landlord and/or certain
beneficial owners of Landlord may from time to time qualify as real estate
investment trusts pursuant to Sections 856 et seq. of the Code or as entities
described in Section 511(a)(2) of the Code, and that avoiding the loss of such
status, the receipt of any income derived under any provision of this Lease that
does not constitute "rents from real property" (in the case of real estate
investment trusts) or that constitutes "unrelated business taxable income" (in
the case of entities described in Section 511(a)(2) of the Code), and the
imposition of penalty or similar taxes (each an "Adverse Event") is of material
concern to Landlord and/or such beneficial owners. In the event that this Lease
or any document contemplated hereby could, in the opinion of counsel to
Landlord, result in or cause an Adverse Event, Tenant agrees to cooperate with
Landlord in negotiating an amendment or modification thereof and shall at the
request of Landlord execute and deliver such documents reasonably required to
effect such amendment or modification. Any amendment or modification pursuant to
this Article 35 shall be structured so that the economic results to Landlord and
Tenant shall be substantially similar to those set forth in this Lease without
regard to such amendment or modification and shall not increase Tenant's
obligations hereunder, monetary or otherwise, except to a de minimis extent, or
adversely affect the rights of Tenant under this Lease or Tenant's leasehold
estate created hereby. Landlord shall have the right to waive receipt of any
amount payable to Landlord hereunder and such waiver shall constitute an
amendment or modification of this Lease with respect to such payment.
ARTICLE 36
SECURITY DEPOSIT
----------------
Section 36.1 SECURITY DEPOSIt. Tenant shall deposit with Landlord upon the
execution of this Lease the Security Deposit in cash as security for the
faithful performance and observance by Tenant of the terms, covenants and
conditions of this Lease, including the surrender of possession of the Premises
to Landlord as herein provided.
Section 36.2 LETTER OF CREDIT. In lieu of a cash deposit, Tenant may
deliver to Landlord a clean, irrevocable, non-documentary and unconditional
letter of credit (the "Letter of Credit") issued by and drawable upon any
commercial bank, trust company, national banking association or savings and loan
association (hereinafter referred to as the "Issuing Bank") with offices for
banking purposes in the City of New York, which shall have outstanding
unsecured, uninsured and unguaranteed indebtedness, or shall have issued a
letter of credit or other credit facility that constitutes the primary security
for any outstanding indebtedness (which is otherwise uninsured and
unguaranteed), that is then rated, without regard to qualification of such
rating by symbols such as "+" or "-" or numerical notation, "Aa" or better by
Moody's Investors Service and "AA" or better by
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Standard & Poor's Corporation, and has combined capital, surplus and undivided
profits of not less than $500,000,000, which Letter of Credit shall name
Landlord as beneficiary, be in the amount of the Security Deposit, have a term
of not less than one year, permit multiple drawings, be fully transferable by
Landlord without the payment of any fees or charges, and otherwise be in form
and content satisfactory to Landlord. If upon any transfer, any fees or charges
shall be so imposed, then such fees or charges shall be payable solely by Tenant
and the Letter of Credit shall so specify. The Letter of Credit shall provide
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the term of this Lease,
unless the Issuing Bank sends notice (the "Non-Renewal Notice") to Landlord by
certified mail, return receipt requested, not less than 45 days next preceding
the then expiration date of the Letter of Credit that it elects not to have such
Letter of Credit renewed. Landlord shall have the right, exercisable within 20
days of its receipt of the Non-Renewal Notice, to draw the full amount of the
Letter of Credit, by sight draft on the Issuing Bank, and shall hold the
proceeds of the Letter of Credit pursuant to the terms of this Article as a cash
security pursuant to this Article 36.
Section 36.3 APPLICATION OF SECURITY. If Tenant defaults in respect of any
of the terms, covenants or conditions of this Lease, including the payment of
Rent, Landlord may apply or retain the whole or any part of the cash security so
deposited or may notify the Issuing Bank and thereupon receive all or a portion
of the monies represented by the Letter of Credit and use, apply, or retain the
whole or any part of such proceeds, as the case may be, to the extent required
for the payment of any Fixed Rent or any other sum as to which Tenant is in
default including (i) any sum which Landlord may expend or may be required to
expend by reason of Tenant's default, and/or (ii) any damages or deficiency in
the reletting of the Premises, whether such damages or deficiency accrue or
accrues before or after summary proceedings or other reentry by Landlord. If
Landlord applies or retains any part of the cash security or proceeds of the
Letter of Credit, as the case may be, Tenant, upon demand, shall deposit with
Landlord the amount so applied or retained so that Landlord shall have the full
Security Deposit on hand at all times during the Term. If Tenant shall fully and
faithfully comply with all of the terms, covenants and conditions of this Lease,
the cash security or Letter of Credit, as the case may be, shall be returned to
Tenant after the Expiration Date and after delivery of possession of the
Premises to Landlord in the manner required by this Lease. Tenant expressly
agrees that Tenant shall have no right to apply any portion of the Security
Deposit against any of Tenant's obligations to pay Rent hereunder and, if Tenant
shall seek to so apply such Security Deposit, Tenant shall pay liquidated
damages to Landlord in a sum equal to two times the amount of any such unpaid
Rent.
Section 36.4 TRANSFER. Upon a sale of the Real Property or the Building or
a leasing of the Building, Landlord shall have the right to transfer the cash
security to the vendee or lessee and with respect to the Letter of Credit, and
within five days after notice of such sale or leasing, Tenant, at its sole cost,
shall arrange for the transfer of the Letter of Credit to the new landlord, as
designated by Landlord in the foregoing notice or have the Letter of Credit
reissued in the name of the new landlord and Landlord shall
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thereupon be released by Tenant from all liability for the return of such
security. Tenant shall look solely to the new landlord for the return of such
cash security or Letter of Credit and the provisions hereof shall apply to every
transfer or assignment made of the security to a new landlord. Tenant further
covenants and agrees that it shall not assign or encumber or attempt to assign
or encumber the monies or Letter of Credit deposited on as security and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 37
RENEWAL TERM
------------
Section 37.1 RENEWAL TERM. Tenant shall have the option to renew this Lease
for one renewal term of 5 years (the "Renewal Term") which shall commence on the
day following the expiration of the initial Term and end on the fifth
anniversary of the Expiration Date, unless the Renewal Term shall sooner
terminate pursuant to any of the terms of this Lease or otherwise. The Renewal
Term shall commence only if (i) Tenant shall have notified Landlord in writing
of Tenant's exercise of such renewal option not later than one year prior to the
Expiration Date, and (ii) at the time of the exercise and immediately prior to
the Expiration Date, no event of Default shall have occurred and be continuing
hereunder. ________ of the _______ with respect to the giving of the notice of
Tenant's exercise of the ______ renewal option. The Renewal Term shall be upon
all of the agreements, terms, covenants and conditions hereof binding upon
Tenant (but excluding any obligation of Landlord to make any contribution to, or
perform any Alteration), except that the Fixed Rent (as defined in Section 1.1)
shall be determined as provided in Section 37.2 and there shall be no further
renewal right after the expiration of the Renewal Term. Upon the commencement of
the Renewal Term, (A) the Renewal Term shall be added to and become part of the
Term (but shall not be considered part of the initial Term), (B) any reference
to "this Lease", to the "Term", the "term of this Lease" or any similar
expression shall be deemed to include the Renewal Term, and (C) the expiration
of the Renewal Term shall become the Expiration Date.
Section 37.2 RENEWAL TERM RENT. If the Term shall be renewed as provided in
Section 37.1, the annual Fixed Rent payable during the Renewal Term shall be
equal to 95% (if Tenant and/or Related Entities shall be in occupancy of at
least 50 percent of the Premises at the time such notice is given) or 100% (if
Tenant and/or Related Entities are not in occupancy of at least 50 percent of
the Premises at the time such notice is given) of the annual fair market rental
value of the Premises as of the date one year prior to the expiration of the
initial Term (the "Calculation Date"). Any dispute between the parties as to the
annual fair market rental value shall be resolved by arbitration as provided in
Section 37.3 hereof. If the Fixed Rent payable during the Renewal Term has not
been determined prior to the commencement thereof, Tenant shall pay Fixed Rent
in an amount equal to the fair market rental value for the Premises as
reasonably determined by Landlord (the "Interim Rent"). Upon final determination
of the Fixed Rent for the Renewal Term, Tenant shall commence paying such Fixed
Rent as so determined, and within ten (10) days after such determination Tenant
shall pay any deficiency in prior
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payments of Fixed Rent or, if the Fixed Rent as so determined shall be less than
the Interim Rent, Tenant shall be entitled to a credit against the next
succeeding installments of Fixed Rent in an amount equal to the difference
between each installment of Interim Rent and the Fixed Rent as so determined
which should have been paid for such installment until the total amount of the
over payment has been recouped. No adjustment shall be made to Base Operating
Expense, and Base Taxes in respect of the Renewal Term.
Section 37.3 ARBITRATION. The annual fair market rental value of the
Premises shall be determined in accordance with the following provisions:
(a) On or after one year prior to the Expiration Date, either Landlord
or Tenant may notify the other party in writing that it desires to meet to
attempt to agree on the annual fair market rental value of the Premises. Each
party shall be entitled to have its consultants and experts participate in the
meetings and discussions between the parties. If Landlord and Tenant have not
agreed on the annual fair market rental value of the Premises and executed and
delivered between them a supplement to this Lease setting forth the same within
60 days after the giving of such notice, then either Landlord or Tenant may
notify the other that it desires to invoke the arbitration procedure set forth
in this Article.
(b) If Landlord or Tenant desires to invoke the arbitration procedure
set forth in this Article, the party invoking the arbitration procedure shall
give a notice (the "Arbitration Notice") to the other party meeting the
requirements of the CPLR Section 7503(c), or any successor statute, and stating
that the party sending the Arbitration Notice desires to meet within 10 days to
attempt to agree on a single arbitrator to determine the annual fair market
rental value of the Premises (the "Arbitrator"). If Landlord and Tenant have not
agreed on the Arbitrator within 30 days after the giving of the Arbitration
Notice, then either Landlord or Tenant, on behalf of both, may apply to the New
York City office of the AAA for appointment of the Arbitrator. The date on which
the Arbitrator is appointed, by the agreement of the parties or by appointment
by the AAA, is referred to herein as the "Appointment Date". If any Arbitrator
appointed hereunder shall be unwilling or unable, for any reason, to serve, or
continue to serve, a replacement arbitrator shall be appointed in the manner set
forth above.
(c) The arbitration shall be conducted in accordance with the then
prevailing rules of the AAA, modified as follows:
(i) To the extent that the CPLR or any successor statute
imposes requirements different than those of the AAA in order for the decision
of the Arbitrator to be enforceable in the courts of the State of New York, such
requirements shall be complied with in the arbitration.
(ii) The Arbitrator shall be disinterested and impartial and
shall have at least 10 years' experience in the valuation of fair market rentals
in major office buildings in mid-town Manhattan.
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(iii) Before hearing any testimony or receiving any evidence,
the Arbitrator shall be sworn to hear and decide the controversy faithfully and
fairly by an officer authorized to administer an oath and a written copy thereof
shall be delivered to Landlord and Tenant.
(iv) Within 30 days after the Appointment Date, Landlord and
Tenant shall deliver to the Arbitrator 2 copies of their respective written
determinations of the annual fair market rental value of the Premises (each, a
"Determination"), together with such affidavits, appraisals, reports and other
written evidence relating thereto as the submitting party deems appropriate.
After the submission of its Determination, neither party may make any additions
to or deletions from, or otherwise change, its Determination. If either party
fails to so deliver its Determination within such time period, time being of the
essence with respect thereto, such party shall be deemed to have irrevocably
waived its right to deliver a Determination and the Arbitrator, without holding
a hearing, shall accept the Determination of the submitting party as the annual
fair market rental value of the Premises. If each party submits a Determination
with respect to the annual fair market rental value of the Premises within the
30 day period described above, the Arbitrator shall, promptly after its receipt
of the second Determination, deliver a copy of each party's Determination to the
other party, together with copies of all materials submitted therewith. If the
higher of the Determinations so submitted by the parties exceeds the lower of
such Determinations by not more than 10% of the lower Determination, then the
Arbitrator, without holding a hearing, shall determine that the annual fair
market rental value of the Premises is the mathematical average of the two
Determinations thereof.
(v) If the annual fair market rental value of the Premises has
not been determined pursuant to clause (iv) of this subparagraph, then not less
than 15 days nor more than 30 days after the earlier to occur of (A) the
expiration of the 30 day period provided for in clause (iv) of this subparagraph
or (B) the Arbitrator's receipt of both of the Determinations from the parties
(such earlier date is referred to herein as the "Submission Date"), and upon not
less than 10 days' notice to the parties, the Arbitrator shall hold one or more
hearings with respect to the determination of the annual fair market rental
value of the Premises. The hearings shall be held in the Borough of Manhattan at
such location and time as shall be specified by the Arbitrator. Each of the
parties shall be entitled to present all relevant evidence and to cross-examine
witnesses at the hearings. The Arbitrator shall have the authority to adjourn
any hearing to such later date as the Arbitrator shall specify, provided that in
all events all hearings with respect to the determination of the annual fair
market rental value of the Premises shall be concluded not later than 45 days
after the Submission Date.
(vi) Except as otherwise provided in clause (iv) of this
subparagraph, the Arbitrator shall be instructed, and shall be empowered only,
to select as the annual fair market rental value of the Premises that one of the
Determinations which the Arbitrator believes is the more accurate determination
of the annual fair market rental value of the Premises. Without limiting the
generality of the foregoing, in rendering his
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or her decision, the Arbitrator shall not add to, subtract from or otherwise
modify the provisions of this Lease or either of the Determinations.
(vii) The Arbitrator shall render his or her determination as
to the selection of a Determination in a signed and acknowledged written
instrument, original counterparts of which shall be sent simultaneously to
Landlord and Tenant, within ten (10) days after the earlier to occur of (A) his
or her determination of the annual fair market rental value of the Premises
pursuant to clause (iv) of this subparagraph or (B) the conclusion of the
hearing(s) required by clause (v) of this subparagraph.
(d) This provision shall constitute a written agreement to submit any
dispute regarding the determination of annual fair market rental value of the
Premises to arbitration.
(e) The arbitration decision, determined as provided in this Article,
shall be conclusive and binding on the parties, shall constitute an "award" by
the Arbitrator within the meaning of the AAA rules and applicable law and
judgment may be entered thereon in any court of competent jurisdiction.
(f) Each party shall pay its own fees and expenses relating to the
arbitration (including, without limitation, the fees and expenses of its counsel
and of experts and witnesses retained or called by it). Each party shall pay
one-half (1/2) of the fees and expenses of the AAA and of the Arbitrator,
provided that (i) the Arbitrator shall have the authority to award such fees and
expenses in favor of the prevailing party and (ii) if either party fails to
submit a Determination within the period provided therefor, such non-submitting
party shall pay all of such fees and expenses.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
11 WEST 42 LIMITED PARTNERSHIP,
Landlord
By: WHTS COMPANY, INC., a general partner
By: /s/ Kim E. Bonfield
-----------------------------
Name: Kim E. Bonfield
Title: Vice President
By: WEST 42 ASSOCIATES, L.P.,
a general partner
By: 11 West 42nd Realty I Corp.,
a general partner
By: /s/ [illegible]
----------------------------------
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
11 WEST 42 LIMITED PARTNERSHIP,
Landlord
By: WHTS COMPANY, INC., a general partner
By: /s/ [illegible]
-----------------------------
Name:
Title:
By: WEST 42 ASSOCIATES, L.P.,
a general partner
By: 11 West 42nd Realty I Corp.,
a general partner
By:
----------------------------------
Name:
Title:
<PAGE>
By: 11 WEST 42nd Realty II Corp.,
a general partner
By: /s/ [illegible]
---------------------------------
Name:
Title:
ANNE KLEIN & COMPANY, Tenant
By: /s/ L.P. Stern
---------------------------------
Name: L.P. Stern
Title: Senior Vice President
MARK OF THE LION ASSOCIATES, Tenant
BY: /s/ L.P. Stern
---------------------------------
Name: L.P. Sterns
Title: Senior Vice President
<PAGE>
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the 4th day of June, 1996 before me personally came L.P. Stern, to
me known to be the individual who executed the foregoing instrument and, who,
being duly sworn by me, did depose and say that he/she is a Senior Vice
President of Anne Klein & Company, and that he/she executed the foregoing
instrument in the name of Anne Klein & Company, and that he/she signed his/her
name thereto by order of the partnership.
/s/ Deborah M. Waide
---------------------------------
Notary Public
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the 4th day of June, 1996 before me personally came L.P. Stern, to
me known to be the individual who executed the foregoing instrument and, who,
being duly sworn by me, did depose and say that he/she is a Senior Vice
President of Mark of the Lion Associates, and that he/she executed the foregoing
instrument in the name of Mark of the Lion Associates, and that he/she signed
his/her name thereto by order of the partnership.
/s/ Deborah M. Waide
---------------------------------
Notary Public
<PAGE>
EXHIBIT A
---------
[FLOOR PLAN]
------------
<PAGE>
EXHIBIT B
---------
DEFINITIONS
-----------
BASE RATE: The annual rate of interest publicly announced from time to time
by Citibank, N.A., or its successor, _________ New York, New York as its "base
rate" (or such other term as may be used by Citibank, N.A., from time to time,
for the rate presently referred to as its "base rate").
BUILDING SYSTEM: The mechanical, electrical, plumbing, sanitary, sprinkler,
heating, ventilation and air conditioning, security, life-safety, elevator and
other service systems or facilities of the Building up to the point of localized
distribution to the Premises (excluding, however, supplemental HVAC systems of
tenants (including Tenant), sprinklers and the horizontal distribution systems
within and servicing the Premises and by which mechanical, electrical, plumbing,
sanitary, heating, ventilating and air conditioning, life-safety and other
service systems are distributed from the base Building risers, feeders,
panelboards, etc. for provision of such services to the Premises).
BUSINESS DAYS: All days, excluding Saturdays, Sundays and all days observed
by either the State in which the Building is located, the Federal Government or
the labor unions servicing the Building as legal holidays.
CODE: The Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
CONSUMER PRICE INDEX: The Consumer Price Index for All Urban Customers,
CPI-U, published by the Bureau of Labor Statistics of the United States
Department of Labor, New York - Northern New Jersey - Long Island, NY-NJ-CT
Area, 'All Items' (1982-84=100), or any successor index thereto covering New
York City, appropriately adjusted. In the event that the Consumer Price Index is
converted to a different standard reference base or otherwise revised, the
determination of adjustments provided for herein shall be made with the use of
such conversion factor, formula or table for converting the Consumer Price Index
as may be published by the Bureau of Labor Statistics or, if said Bureau shall
not publish the same, then with the use of such conversion factor, formula or
table as may be published by Prentice-Hall, Inc., or any other nationally
recognized publisher of similar statistical information. If the Consumer Price
Index ceases to be published, and there is no successor thereto, such other
index as Landlord shall select and Tenant shall approve, such approval not to be
unreasonably withheld, shall be substituted for the Consumer Price Index.
COST PER KILOWATT HOUR: Shall mean (a) the total cost for electricity
incurred by Landlord to service the Building during a particular billing period
(including energy charges, demand charges, all applicable surcharges,
time-of-day charges, fuel adjustment charges, rate adjustment charges, taxes,
rebates and any other factors used by the public utility company in computing
its charges to Landlord) or, if electricity is provided by any electricity
generation system owned and operated by Landlord, an amount equal to the
<PAGE>
total cost which would have been incurred by Landlord had Landlord purchased the
electricity generated by Landlord during a particular billing period from a
public utility company, divided by (b) the total kilowatt hours purchased (or
generated, as the case may be) by Landlord during such period.
DEFICIENCY: The difference between (a) the Rent for the period which
otherwise would have constituted the unexpired portion of the Term (assuming the
Additional Rent for each year thereof to be the same as was payable for the year
immediately preceding such termination or re-entry), and (b) the net amount, if
any, of rents collected under any reletting effected pursuant to the provisions
of the Lease for any part of such period (after first deducting from such rents
all expenses incurred by Landlord in connection with the termination of this
Lease, Landlord's re-entry upon the Premises and such reletting, including
repossession costs, brokerage commissions, reasonable attorneys' fees and
disbursements, and alteration costs).
EXCLUDED EXPENSES: (a) Taxes; (b) franchise or income taxes imposed upon
Landlord; (c) mortgage amortization and interest; (d) leasing commissions; (e)
the cost of tenant installations and decorations incurred in connection with
preparing space for any Building tenant, including workletters and concessions;
(f) ground rent, if any; (g) management fees in excess of 3% of the gross
rentals collected for the Building; (h) wages, salaries and benefits paid to any
persons above the grade of Building Manager; (i) legal and accounting fees
relating to (A) disputes with tenants, prospective tenants or other occupants of
the Building, (B) disputes with purchasers, prospective purchasers, mortgagees
or prospective mortgagees of the Building or the Real Property or any part of
either, or (C) negotiations of leases, contracts of sale or mortgages; (j) costs
of services provided to other tenants of the Building on a "rent-inclusion"
basis which are not provided to Tenant on such basis and electricity provided to
other tenants of the building at no charge during the initial construction of
their premises; (k) costs that are reimbursed out of insurance, warranty or
condemnation proceeds, or which are reimbursable by Tenant or other tenants
other than pursuant to an expense escalation clause; (l) costs in the nature of
penalties or fines; (m) costs for services, supplies or repairs paid to any
related entity in excess of costs that would be payable in an "arm's length" or
unrelated situation; (n) allowances, concessions or other costs and expenses of
improving or decorating any demised or demisable space in the Building, (o)
appraisal, advertising and promotional expenses in connection with leasing of
the Building; (p) the costs of installing, operating and maintaining a specialty
improvement, including a cafeteria, lodging or private dining facility, or an
athletic, luncheon or recreational club; (q) any costs or expenses (including
fines, interest, penalties and legal fees) arising out of Landlord's failure to
timely pay Operating Expenses or Taxes; (r) costs incurred in connection with
the removal, encapsulation or other treatment of asbestos or any other Hazardous
Materials existing in the Premises as of the date hereof if the removal,
encapsulation or other treatment of such asbestos or Hazardous Material is
required as of the date hereof; (s) the cost of capital improvements other than
those expressly included in Operating Expenses pursuant to Section 8.1 of this
Lease; (t) the costs of repairs made by Landlord resulting from damage,
structural or non-structural, due to the negligence of
<PAGE>
Landlord or its agents, servants or employees; (w) depreciation or amortization
of the Building; (v) Rent and Additional Rent paid by Landlord for its office
space in the Building or elsewhere and incidental expenses relating to such
office space; (w) damages paid by Landlord and the costs of litigation in
connection with actions by tenants against Landlord for Landlord's negligence or
claimed breaches by it of its contractual obligations with such tenants; (x) to
the extent that any employee of Landlord performs work or services other than
for the Building, the reasonably allocable portion of the compensation of such
employee with respect to work not performed in connection with the Building; (y)
rental concession and lease buy-outs; (z) expenses (including attorney's fee and
overtime) incurred in curing Landlord's defaults under, or performing work
resulting from violations by Landlord of, the terms of any lease for space in
the Building; (aa) costs incurred by Landlord related to an actual or proposed
sale of the Building; (bb) costs incurred as a result of Landlord's compliance
with the Americans with Disabilities Act of 1990 as such law is interpreted and
applied as of the date hereof other than an existing Requirement which Landlord
was not required to satisfy as of the date hereof; and (cc) the costs incurred
by Landlord to purchase artwork located in or about the Building.
GOVERNMENTAL AUTHORITY (AUTHORITIES): The United States of America, the
State and City of New York, any political subdivision and any agency,
department, commission, board, bureau or instrumentality of any of the
foregoing, now existing or hereafter created, having jurisdiction over the Real
Property or any portion thereof or the curbs, sidewalks, and areas adjacent
thereto.
HAZARDOUS MATERIALS: Any substances, materials or wastes currently deemed
or defined as "hazardous substances", "toxic substances", "contaminants",
"pollutants" or words of similar import.
HVAC SYSTEMS: The Building System[s] designed to provide heating,
ventilation and air conditioning.
INDEMNITIES: Landlord, and any direct or indirect partner, shareholder,
director, officer, principal, employee, agent or representative.
LESSOR: A lessor under a Superior Lease.
MORTGAGE(S): Any mortgage, trust, indenture or other financing document
which may now or hereafter affect the Premises, the Real Property, the Building
or any Superior Lease and the leasehold interest created thereby, and all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder.
MORTGAGEE(S): Any mortgagee, trustee or other holder of a Mortgage.
PROHIBITED USE: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would: (a) cause damage to the Building, the Premises or any
<PAGE>
equipment, facilities or other systems therein; (b) impair the appearance of the
Premises or the Building; (c) interfere with the efficient and economical
maintenance, operation and repair of the Premises or the Building or the
equipment, facilities or systems thereof; (d) adversely affect any service
provided to, and/or the use and occupancy by, any Building tenant or occupants;
or (e) violate the certificate of occupancy issued for the Premises or the
Building. Prohibited Use also includes the use of any part of the Premises for:
(i) a restaurant or bar; (ii) the preparation, consumption, storage, manufacture
or sale of food, beverages, liquor, tobacco or drugs (except in connection with
vending machines and/or warming _________ installed for the use of Tenant's
employees only); (iii) the business of photocopying, multilith or offset
printing (except photocopying in connection with Tenant's own business); (iv) a
typing or stenography business; (v) a school or classroom; (vi) lodging or
sleeping; (vii) the operation of retail (meaning a business whose primary
patronage arises from the generalized solicitation of the general public to
visit Tenant's offices in person without a prior appointment) facilities of a
savings and loan association or retail facilities of any financial, lending,
securities brokerage or investment activity; (viii) a payroll office; (ix) a
barber, beauty or manicure shop; (x) an employment agency, executive search firm
or similar enterprise; (xi) offices of any Governmental Authority, any foreign
government, the United Nations, or any agency or department of the foregoing;
(xii) subject to Section 3.3, the manufacture, retail sale, storage of
merchandise or auction of merchandise, goods or property of any kind to the
general public which could reasonably be expected to create a volume of
pedestrian traffic substantially in excess of that normally encountered in the
Premises; (xiii) the rendition of medical, dental or other therapeutic or
diagnostic services; or (xiv) any illegal purposes.
REQUIREMENTS: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary of all Governmental Authorities, including the Americans With
Disabilities Act, 42 U.S.C. ss.12,101 (et seq.), New York City Local Law 58 of
1987, and any law of like import, and all rules, regulations and government
orders with respect thereto, and any of the foregoing relating to Hazardous
Materials environmental matters, public health and safety matters, and of any
applicable fire rating bureau or other body exercising similar functions,
affecting the Real Property or the maintenance, use or occupation thereof, or
any street, avenue or sidewalk comprising a part of or in front thereof or any
vault in or under the same.
RULES AND REGULATIONS: The rules and regulations annexed to and made a part
of this Lease as Exhibit F, as they may be modified from time to time by
Landlord.
SUPERIOR LEASE(S): Any ground or underlying lease of the Real Property or
any part thereof heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof.
TENANT'S PROPERTY: Tenant's movable fixtures and movable partitions,
telephone and other equipment, computer systems, trade fixtures, furniture,
furnishings, and other
<PAGE>
items of personal property which are removable without material damage to the
Premises or Building.
UNAVOIDABLE DELAYS: Landlord's inability to fulfill or delay in fulfilling
any of its obligations under this Lease expressly or impliedly to be performed
by Landlord or Landlord's inability to make or delay in making any repairs,
additions, alterations, improvements or decorations or Landlord's inability to
supply or delay in supplying any equipment or fixtures, if Landlord's inability
or delay is due to or arises by reason of strikes, labor troubles or by
accident, or by any cause whatsoever reasonably beyond Landlord's control,
including laws, governmental promotion in connection with a national emergency,
Requirements or shortages, or unavailability of labor, fuel, steam, water,
electricity or materials, or delays caused by Tenant or other tenants,
mechanical breakdown, acts of God, enemy action, civil commotion, fire or other
casualty.
<PAGE>
EXHIBIT C
LANDLORD'S WORK
---------------
<TABLE>
<CAPTION>
Landlord shall be responsible at its cost, for the
following base building work: Projected Completion Time
- ----------------------------- -------------------------
<S> <C>
1. Demolish the Premises, remove existing 21 days
construction and furnishings and deliver in broom
clean condition.
2. Bring the building's Class E system to each floor Prior to substantial completion of Initial
of the Premises. Alterations
3. Install one electrical submeter per floor. 30 days
4. Patch all floors to a tolerance of 1/4 inch in an 30 days after demolition
eight (8) foot diameter on a non-cumulative
basis and remove all floor tile.
5. Repair damaged convector covers and replace all Prior to substantial completion of Initial
convector grills and convector valves as required. Alterations
6. Install a primary sprinkler loop around the 30 days
Building's core on each floor of the Premises.
7. Bathrooms to be renovated with new Building 120 days after demolition
standard materials and each floor of the Premises
will be provided with one ADA compliant uni-sex
restroom in addition to male and female bathrooms.
8. Windows will be weatherproofed, made operable, and 60 days after completion of demolition
broken glass will be replaced.
9. Provide ACP-5 certificates for Landlord's Work and 21 days
Initial Alterations.
</TABLE>
<PAGE>
EXHIBIT D
---------
HVAC SPECIFICATIONS
-------------------
The Building HVAC System serving the Premises is designed to maintain
average temperatures within the Premises during the hours of 8:00 a.m. to 6:00
p.m. on Business Days of (i) not less than 68 degrees F. during the heating
season when the outdoor temperature is 55 degree F. or more and (ii) not more
than 78 degrees F. and 50% humidity + 5% during the cooling season, when the
outdoor temperatures are at 89 degrees F. dry bulb and 73 degrees F. wet bulb,
with, in the case of clauses (i) and (ii), a population load per floor of not
more than one person per 100 square feet of useable area, other than in dining
and other special use areas per floor for all purposes, and shades fully drawn
and closed, including lighting and power, and to provide at least .15 CFM of
outside ventilation per square foot of rentable area. Use of the Premises, or
any part thereof, in a manner exceeding the foregoing design conditions or
rearrangement of partitioning after the initial preparation of the Premises
which interferes with normal operation of the air-conditioning service in the
Premises may require changes in the air-conditioning system serving the
Premises.
<PAGE>
EXHIBIT E
---------
CLEANING SPECIFICATIONS
-----------------------
GENERAL CLEANING
- ----------------
NIGHTLY
- -------
General Offices:
----------------
1. All hard surfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks,
file cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures, window sills
and telephones.
4. Empty all waste receptacles and remove wastepaper and replace
liners as reasonably required by contractor.
5. Wash, clean and disinfect all Building water fountains.
6. Sweep all private stairways.
Lavatories:
-----------
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals and refill soap
dispensers from tenant supply.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles, fill receptacles from tenant supply,
remove wastepaper and replace waterproof liners as deemed
reasonably necessary by contractor.
7. Fill toilet tissue holders.
8. Empty and clean sanitary disposal receptacles and refill.
<PAGE>
WEEKLY
1. Vacuum all carpeting and rugs.
2. Dust all door louvers and other ventilating louvers within a
person's reach.
3. Wipe clean all brass and other bright work.
QUARTERLY
High dust premises complete including the following:
1. Dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning.
2. Dust all vertical surfaces, such as walls, partitions, doors,
bucks and other surfaces not reached in nightly cleaning.
3. Dust all venetian blinds.
4. Wash all windows inside and outside.
5. Spot clean carpets as reasonably required.
<PAGE>
EXHIBIT F
---------
RULES AND REGULATIONS
---------------------
1. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades, screens or other
obstructions shall be attached to or hung in or used in connection with any
exterior window or entry door of the Premises, without the prior written consent
of Landlord.
2. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed to any part of the outside of the
Premises or Building or on the inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of Landlord.
Lettering on doors, if and when approved by Landlord, shall be inscribed,
painted or affixed for Tenant in a size, color and style acceptable to Landlord.
3. The grills, louvers, skylights, windows and doors that reflect or
admit light and/or air into the Premises, halls, passageways or other public
places in the Building shall not be covered or obstructed by Tenant, nor shall
any bottles, parcels or other article be placed on the window sills, radiators
or convectors.
4. Landlord shall have the right to prohibit any advertising by Tenant
which refers to or illustrates the Building which, in Landlord's opinion, tends
to impair the reputation of the Building or its desirability as a Building for
offices, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
5. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than ingress or egress to and from the Premises and
for delivery of merchandise, equipment and other personal property in prompt and
efficient manner, using elevators and passageways designated for such delivery
by Landlord.
6. Except in those areas designated by Tenant as "security areas", all
locks or bolts of any kind shall be operable by the Grand Master Key. No locks
shall be placed upon any of the doors or windows by Tenant, nor shall any
changes be made in locks or the mechanism thereof which shall make such locks
inoperable by said Grand Master Key. Tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of stores, offices and toilet rooms,
either furnished to or otherwise procured by Tenant and in the event of the loss
of any keys furnished by Landlord, Tenant shall pay to Landlord the cost
thereof.
7. Tenant shall keep the entrance door to the Premises closed at all
times.
8. All removals or the carrying in or out of any freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during Building standard hours or, upon advance notice and subject to
the provisions of the
<PAGE>
Lease, after standard hours. Landlord reserves the right to inspect all objects
and matter to be brought into the Building and to exclude from the Building all
objects and matter which violates any of these Rules and Regulations or the
lease of which these Rules and Regulations are a part. Landlord may require that
any person leaving the public areas of the Building with any package, object or
matter submit a pass, listing each package, object or matter being removed, but
the establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of Tenant against the removal of
property from the Premises.
9. There shall not be used in any space or in the public halls of the
Building, either by Tenant or by jobbers or any others in the moving or delivery
or receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material or any other matter or thing, any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord requires.
10. None of Tenant's employees, visitors or contractors shall be
permitted to have access to the Building's roof, mechanical, electrical or
telephone rooms without permission from Landlord.
11. Tenant shall not make or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
Buildings or premises or those having business with them.
12. Tenant shall not lay floor tile, or other similar floor covering so
that the same shall come in direct contact with the floor of the 20th floor of
the Premises and, if such 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.
13. Neither Tenant nor any of Tenant's servants, employees, agents,
visitors or licensees shall at any time bring or keep upon the Premises any
hazardous material, inflammable, combustible or explosive fluid, chemical or
substance except such minimal quantities as are incidental to Permitted Users.
14. Tenant shall not use or keep, or permit to be used or kept, any
hazardous or toxic materials or any foul or noxious gas or substance in the
Premises, 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, vibrations or interfere in any way with other tenants or
those having business therein.
15. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Premises
which would annoy other tenants or create a public or private nuisance.
16. Except as specifically provided in the Lease and warming kitchens
installed for the use of Tenant's employees, Tenant shall not do any cooking or
conduct
<PAGE>
any restaurant, luncheonette or cafeteria for the sale or service of food or
beverages to its employees or to others.
17. Tenant may, at its sole cost and expense and subject to compliance
with all applicable requirements of the Lease, install and maintain vending
machines for the exclusive use by Tenant, its officers, employees and business
guests, provided that each machine, where necessary, shall have a waterproof pan
thereunder and be connected to a drain. Tenant shall not permit the delivery of
any food or beverage to the Premises, except by persons approved by Landlord,
which approval shall not be unreasonably withheld or delayed.
18. Subject to the Lease, Tenant shall not employ any person or persons
other than the janitor of Landlord for the purpose of cleaning the Premises,
unless otherwise agreed to by Landlord in writing. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
19. Tenant shall store all its trash, garbage and recyclables within
its Premises. No material shall be disposed of which may result in a violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entry ways and elevators provided for such purposes
and at such times as Landlord shall designate. Tenant shall use Building's
hauler.
20. Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
21. Tenant shall not drill into or in any way deface any part of the
Premises or the Building, except with the prior written consent of Landlord in
the case of the Premises, which consent shall not be unreasonably withheld.
22. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed and no
sweepings, rubbish, _______ or other substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant who
or whose servants, employees, agents, visitors or licensees shall cause the
same.
23. Tenant, before closing and leaving the Premises at any time, shall
see that all lights, water, faucets, etc. are turned off. All entrance doors in
the Premises shall be left locked by Tenant when the Premises are not in use.
24. No bicycles, in-line roller skates, vehicles or animals of any kind
(except for seeing eye dogs) shall be brought into or kept by Tenant in or about
the Premises or the Building.
25. Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same.
<PAGE>
26. The Premises shall not be used for lodging or sleeping or for an
immoral or illegal purposes.
27. Subject to the Lease, the Premises shall not be used for
manufacturing, for the storage of merchandise, or for the sale of merchandise,
goods or property of any kind at auction or otherwise, except as specifically
permitted by the Lease.
28. Tenant shall not occupy or _______ __________ of the Premises as an
office for a public stenographer or public typist or for the possession,
storage, manufacture of sale of narcotics, dope or tobacco in any form or as a
barber or manicure shop or as an employment bureau. Tenant shall not engage or
pay any employees on the Premises, except those actually working for Tenant on
the Premises, nor advertise for labor giving an address at the Premises.
29. Tenant shall not accept barbering or bootblacking services in the
Premises, from any company or persons not approved by Landlord, which approval
shall not be unreasonably withheld, and at hours and under regulations other
than as reasonably fixed by Landlord.
30. The requirements of Tenant will be attended to only upon written
application at the office of the building, except in the event of any emergency
condition. Employees of Landlord or Landlord's agents shall not perform any work
or do anything outside of the regular duties, unless under special instructions
from of office of Landlord or in response to an emergency condition.
31. Tenant shall be responsible for the delivery and pick up of all
mail from the United States Post office.
32. Landlord reserves the right to exclude from the Building between
the hours of 6 P.M. and 8 A.M. and at all hours on Saturdays, Sundays and legal
holidays all persons who do not present a pass to the Building signed or
approved by Landlord, which approval shall not be unreasonably withheld. Tenant
shall be responsible for all persons for whom a pass shall be issued at the
request of Tenant and shall be liable to Landlord for all acts of such persons.
33. In accordance with the alteration section of the Lease, Landlord is
entitled to review and approve architectural and engineering drawings. The
review/alteration of Tenant drawings and/or specifications by Tishman Speyer
Properties and any of its representative is not intended to verify Tenant's
engineering or design requirements and/or solutions. The review/alteration is
performed to determine compatibility with the Building Systems and lease
conditions.
34. Tenant renovations are to: be performed by those contractors and
subcontractors on the Landlord's approved contractor's list, adhere to the
Building's applicable Standard Operating Procedures, be compatible with Building
Class E System and other common systems, etc.
<PAGE>
35. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
or any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
36. Landlord shall not be responsible to Tenant or to any other person
for the non-observance or violation of these Rules and Regulations by any other
tenant or other person. Tenant shall be deemed to have read the Rules and
Regulations and to have agreed to abide by them as a condition to its occupancy
of the Premises.
37. These Rules and Regulations are in addition to, and shall not be
constructed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
Exhibit 10.2
OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT (this "Agreement") is made as of the 15th day
of March 1999, by and among KASPER A.S.L., LTD., a Delaware corporation having
an office at 77 Metro Way, Secaucus, NJ 07094 ("Buyer") and ANNE KLEIN COMPANY
LLC, a New York limited liability company having an office at 11 West 42nd
Street, New York, New York 10036 ("Seller").
WHEREAS, Seller is presently engaged in, among other things, the
development, design, production, marketing, distribution and sale of certain
apparel, including, without limitation, women's sportswear, suits and dresses,
under the "Anne Klein," "Anne Klein II," and "A Line Anne Klein" trademarks in
the United States and certain foreign countries (the "Business");
WHEREAS, Anne Klein desires to sell to Buyer, and Buyer desires to
purchase from Anne Klein, Existing Continuing Initials Inventory (as hereinafter
defined) on the terms and conditions set forth herein;
WHEREAS, Seller intends to wind down the Business, and in connection
therewith Seller and Buyer desire to enter into certain transactions as set
forth herein, subject to the terms and conditions set forth in this Agreement;
WHEREAS, in connection with the execution and delivery of this
Agreement, on the date hereof (i) Buyer and Seller are entering into a license
agreement (the "License Agreement") pursuant to which Seller is licensing to
Buyer certain of the trademarks used by Seller in connection with the Business,
(ii) Buyer, Seller and Takihyo Inc. ("Takihyo") are entering into an asset
purchase agreement (the "Purchase Agreement") pursuant to which Buyer is
agreeing to purchase certain assets used by Seller in connection with its
licensing business, (iii) Buyer and Seller are entering into a certain
management consulting and services agreement (the "Management Consulting
Agreement") pursuant to which Buyer is providing certain services to Seller
relating to the wind down of the Business and (iv) Buyer and Seller are entering
into a certain services agreement (the "Services Agreement") pursuant to which
Seller is providing certain services to Buyer in connection with Buyer's
operations pursuant to the License Agreement (collectively, the "Transaction
Documents" and the transactions contemplated by the Transaction Documents, the
"Anne Klein Transactions"); and
WHEREAS, the consummation of certain transactions contemplated by
this Agreement and certain of the Transaction Documents, and the effectiveness
of certain provisions of the License Agreement, is subject to, among other
things, receipt of FTC Approval (as defined in Section 9.2).
NOW, THEREFORE, in consideration of the premises, the mutual
covenants contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
#793458 v1
<PAGE>
ARTICLE I
CONDITION OF FTC APPROVAL EARLY TERMINATION OF THIS AGREEMENT
1.1 FTC Approval; Early Termination. The purchase of the Existing
Continuing Initials Inventory, the payment of the Purchase Price (as hereinafter
defined), the lease by Buyer of certain floors at 11 West 42nd Street
contemplated by Section 8.2, as well as the consummation of the other
transactions contemplated by this Agreement, except those transactions set forth
in Article II and the provisions of Section 9.2 and Articles XI and XII, are
expressly and absolutely subject to obtaining FTC Approval. In the event that
FTC Approval is not obtained prior to May 31, 1999, or on such other date upon
which Buyer and Seller shall mutually agree in writing (the "FTC Deadline"),
then, except for Section 2.9, (a) this Agreement shall terminate and (b) none of
the parties hereto shall have any further rights or obligations of any nature
pursuant hereto.
ARTICLE II
PURCHASE AND SALE OF RESORT 1999 AND SPRING 2000 INVENTORY
2.1 Purchase and Sale of Resort 1999 and Spring 2000 Inventory.
Concurrently with the execution and delivery of this Agreement, and subject to
the terms and conditions hereof, Seller shall sell, transfer and convey to
Buyer, and Buyer shall purchase and acquire from Seller, at Seller's R&S LDP
Cost (as hereinafter defined) thereof, the components (including, without
limitation, piece goods, works-in-progress, finished goods, supplies, labels and
sales and promotional materials and brochures) relating to Resort 1999 and
Spring 2000 inventory purchased or financed by Seller prior to the date hereof
and listed on Schedule 2.1 (collectively, the "R&S Inventory"). Schedule 2.1
sets forth (i) the approximate number and type of each component of the R&S
Inventory and (ii) the R&S LDP Cost of such components as set forth on the books
and records of Seller. The term "R&S LDP Cost" shall mean Seller's landed duty,
paid cost for each item of R&S Inventory.
2.2 R&S Purchase Price. In consideration for the sale and transfer of
the R&S Inventory in accordance with the terms and conditions of this Agreement,
Buyer will pay to Seller the R&S LDP Cost for the R&S Inventory (the "R&S
Purchase Price"), by wire transfer in immediately available funds in accordance
with the wire transfer instructions set forth on Schedule 2.2.
2.3 Allocation of R&S Purchase Price. The R&S Purchase Price shall be
allocated among the R&S Inventory in accordance with an allocation schedule to
be mutually agreed upon by Seller and Buyer within fourteen (14) days of the
date hereof, which allocation schedule shall be prepared in accordance with the
rules under Section 1060 of the Internal Revenue Code of 1986, as amended (the
"Tax Code"), and the Treasury Regulations promulgated thereunder. Unless
otherwise required by applicable law, Seller and Buyer agree to report the
allocation of the R&S Purchase Price in accordance with such schedule for all
purposes, and neither Seller nor Buyer will take any position inconsistent
therewith with respect to any tax return, audit or examination by any taxing
2
<PAGE>
authority, litigation, proceeding or otherwise. In this regard, and without
limiting the foregoing, Buyer and Seller agree to act, and cause their
respective affiliates to act, in accordance with the computations and
allocations contained in such schedule in any forms or reports required to be
filed pursuant to Section 1060 of the Tax Code or the Treasury Regulations
promulgated thereunder ("1060 Forms"), to cooperate in the preparation of any
1060 Forms and to file such 1060 Forms in the manner required by applicable law.
2.4 Physical Inventory Count and Inventory Valuation. Seller and
Buyer acknowledge and agree that Seller has conducted a physical count and
valuation of the R&S Inventory. Each item of the R&S Inventory was physically
counted and valued by Seller at its R&S LDP Cost and the R&S Inventory has been
segregated from Seller's other properties and assets. Damaged, defective and
obsolete items of the R&S Inventory shall be assigned no value.
2.5 Delivery of R&S Inventory. After purchase of the R&S Inventory,
but not later than the close of business on the date hereof, Seller will
assemble the R&S Inventory and shall place it at a loading dock or other
accessible place at such locations as Seller shall designate, which other
locations shall be reasonably acceptable to Buyer, and Buyer's employees, agents
or independent contractors retained by Buyer will load such R&S Inventory onto
trucks or other transportation vehicles provided by Buyer or independent
contractors retained by Buyer. Risk of loss (including risk of damage or
destruction) of such R&S Inventory shall pass to Buyer upon delivery of the R&S
Inventory to Buyer on the later of the R&S Closing Date or the actual delivery
of the R&S Inventory. The sale of the R&S Inventory hereunder shall be evidenced
by a bill of sale (a "Bill of Sale") executed by Seller substantially in the
form of Exhibit A attached hereto and made a part hereof, to be delivered to
Buyer contemporaneously with the signing of this Agreement (the "R&S Bill of
Sale").
2.6 Disputes. Any disputes with regard to any item of the R&S
Inventory or the R&S LDP Cost thereof shall be resolved by the parties acting in
good faith.
2.7 Assumption of R&S Purchase Commitments. Concurrently with the
execution and delivery of this Agreement, and subject to the terms and
conditions hereof, Seller shall assign to Buyer, and Buyer shall assume and
agree to pay, perform and discharge when due and payable, in accordance with
their respective terms, the purchase commitments for Resort 1999 and Spring 2000
inventory listed in Schedule 2.7, complete and correct copies of which purchase
commitments have been delivered to Buyer (the "R&S Purchase Commitments"). Such
assignment and assumption shall be evidenced by execution and delivery by Buyer
and Seller of an assignment and assumption agreement (an "Assignment and
Assumption Agreement") substantially in the form attached hereto as Exhibit B
with respect to the R&S Commitments (the "R&S Assignment and Assumption
Agreement").
2.8 Financing of Resort 1999 and Spring 2000 Inventory Post-Closing.
From and after the date hereof, Buyer shall be solely responsible for the
purchase and financing of all components of Resort 1999 and Spring 2000
3
<PAGE>
inventory, which product lines shall be produced by Buyer under the terms of the
License Agreement subject to its becoming effective in accordance with its
terms. Seller shall not purchase or commit to purchase any components of Resort
2000 or Sprint 2000 inventory without the prior written consent of Buyer.
2.9 FTC Unwind. In the event that FTC Approval is not obtained prior
to the FTC Deadline, then within 20 Business Days after the FTC Deadline (or
such later date as the parties may agree in writing), (i) Buyer shall assign to
Seller and Seller shall assume and agree to pay, perform and discharge when due
and payable, in accordance with their respective terms, the R&S Purchase
Commitments pursuant to an Assignment and Assumption Agreement, (ii) Seller
shall reimburse Buyer for all amounts theretofore paid by Buyer in respect of
the payment, performance and discharge of R&S Purchase Commitments, (iii) Seller
shall repurchase from Buyer, at the R&S LDP Cost, all R&S Inventory purchased by
Buyer from Seller pursuant to this Article II pursuant to a Bill of Sale (iv)
Seller shall purchase and acquire from Buyer and Buyer shall sell, transfer and
convey to Seller, pursuant to a Bill of Sale, all components of Resort 1999 and
Spring 2000 inventory purchased by Buyer pursuant to R&S Purchase Commitments
which Buyer shall have paid, performed or discharged and with respect to which
Seller shall have reimbursed Buyer pursuant to Section 2.9(ii) above (but
without any consideration for such components other than such reimbursement) and
(v) Seller shall purchase from Buyer, at Buyer's landed duty, paid cost, and
arrange for financing for all components of Resort 1999 and Spring 2000
inventory purchased or financed, as the case may be, by Buyer pursuant to
Section 2.8 hereof, provided that Seller shall not be obligated to purchase or
finance any components of Resort 1999 or Spring 2000 inventory unless Buyer
shall have received the written consent of Mr. Frank Mori with respect thereto
prior to Buyer's purchase or finance, as the case may be, of such inventory.
Buyer and Seller agree that the physical inventory, delivery and dispute
resolution procedures set forth in Sections 2.4, 2.5 and 2.6, respectively,
shall be followed in connection with any such purchase by Seller (modified as
appropriate to substitute Seller for Buyer in connection with such purchase).
ARTICLE III
PURCHASE AND SALE OF EXISTING CONTINUING INITIALS INVENTORY
3.1 Purchase and Sale of Inventory. Subject to the terms and
conditions of this Agreement, on the Initials Closing Date (as hereinafter
defined), Seller shall sell, transfer and convey to Buyer, and Buyer shall
purchase and acquire from Seller, at the Initials Inventory LDP Cost (as
hereinafter defined) the Existing Continuing Initials Inventory (as hereinafter
defined). As used herein, "Existing Continuing Initials Inventory" shall mean
(i) those items of inventory from Seller's "Initials" replenishment program
inventory (the "Initials Inventory") listed on Schedule 3.1 and existing at the
Initials Closing, and (ii) those items of Initials Inventory, including piece
goods and finished goods, purchased by Seller after the date hereof and prior to
the Initials Closing with the prior written approval of Buyer, and existing at
the Initials Closing; provided Seller shall have the right to exclude from the
Existing Continuing Initials Inventory to be purchased by Buyer those items for
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which Seller has firm purchase orders in place on the Initials Closing Date,
which orders were placed in the ordinary course of Seller's business. The
Existing Continuing Initials Inventory will be subject to the provisions of
Section 3.4.
3.2 Purchase Price. In consideration for the transfer of the Existing
Continuing Initials Inventory on the Initials Closing Date in accordance with
the terms and conditions of this Agreement, at the Initials Closing, Buyer will
pay to Seller Seller's estimated Initials Inventory LDP Cost for the Existing
Continuing Initials Inventory (the "Purchase Price"), subject to adjustment
under Sections 3.4(c) and 3.5 hereof, by wire transfer in immediately available
funds in accordance with wire transfer instructions to be provided to Buyer by
Seller in writing no later than two (2) days prior to the Initials Closing Date.
3.3 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Existing Continuing Initials Inventory in accordance with an
allocation schedule to be mutually agreed upon by Seller and Buyer within
fourteen (14) days of the date hereof, which allocation schedule shall be
prepared in accordance with the rules under Section 1060 of the Tax Code and the
Treasury Regulations promulgated thereunder. Buyer and Seller agree that such
schedule shall be amended to reflect any post-Closing adjustments determined
under Section 3.5. Unless otherwise required by applicable law, Seller and Buyer
agree to report the allocation of the Purchase Price in accordance with such
schedule for all purposes, and neither Seller nor Buyer will take any position
inconsistent therewith with respect to any tax return, audit or examination by
any taxing authority, litigation, proceeding or otherwise. In this regard, and
without limiting the foregoing, Buyer and Seller agree to act, and cause their
respective affiliates to act, in accordance with the computations and
allocations contained in such schedule in any 1060 Forms, to cooperate in the
preparation of any 1060 Forms and to file such 1060 Forms in the manner required
by applicable law.
3.4 Physical Inventory Count. (a) Prior to or on the Initials Closing
Date, Seller shall conduct a physical count of the Existing Continuing Initials
Inventory, which physical count may, at Seller's discretion, occur as the
Existing Continuing Initials Inventory is loaded on a truck or other
transportation vehicle as contemplated by Section 3.6. Buyer and its accountants
and other advisors, employees or agent shall be entitled to be present at and
shall be entitled to observe such physical count and to inspect (at Buyer's
cost) the Existing Continuing Initials Inventory during such physical count.
(b) Upon completion of the physical count referred to in Section
3.4(a) Seller shall provide to Buyer a list of the Existing Continuing Initials
Inventory along with Seller's estimate of the landed, duty, paid cost of each
item of the Existing Continuing Initials Inventory (the "Initials Inventory LDP
Cost"). Damaged and defective items of the Existing Continuing Initials
Inventory shall be assigned no value subject to compliance with the procedures
described in subsection (c) below.
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(c) Within five (5) business days after delivery of the Existing
Continuing Initials Inventory in accordance with Section 3.6, Buyer shall be
entitled to notify Seller that items of the Existing Initials Inventory
delivered to Buyer were defective or damaged, specifying in reasonable detail
such items. In the event Seller shall agree with Buyer as to such items, such
items shall not be considered items of Existing Continuing Initials Inventory
and the Purchase Price shall be adjusted accordingly. Buyer shall make such
items available to Seller at a loading dock or other accessible place at Buyer's
warehouse reasonably acceptable to Seller and Seller shall promptly retrieve
such items after such notification. Any disputes with regard to any such item
shall be resolved by the parties acting in good faith.
(d) Within forty-five (45) days after the Initials Closing, Seller
shall provide Buyer with Seller's final calculation of the actual Initials
Inventory LDP Cost per item (the "Final Valuation") with appropriate adjustments
for items of Existing Continuing Initials Inventory disputed in accordance with
Section 3.4(c) theretofore resolved by Buyer and Seller. At such time Seller
shall also provide Buyer and Buyer's accountants with a copy of Seller's and, if
applicable, Seller's accountants' work papers relating to the determination of
such Final Valuation, as well as such support and other existing documentation
as Buyer and Buyer's accountants may reasonably request.
3.5 Post-Closing Adjustment of Inventory Valuation. (a) Within twenty
(20) days after Buyer's receipt of the Final Valuation, Buyer shall be entitled
to notify Seller in writing of any dispute with regard to the Initials Inventory
LDP Cost of the Existing Continuing Initials Inventory specifying in reasonable
detail the disputed items, and the nature and basis of the disputes. The
Purchase Price shall be adjusted dollar-for-dollar by an amount, if any,
determined pursuant to Section 3.5(b).
(b) Seller and Buyer shall attempt to reconcile any and all disputes
acting in good faith. However, if Seller and Buyer are unable to reach a
resolution as to any disputes within three (3) business days after the giving of
the notice referred to in Section 3.5(a), the items remaining in dispute shall
be submitted for resolution to a firm of independent certified public
accountants in their capacity as experts (the "Experts"), who shall be mutually
chosen by Seller, on the one hand, and Buyer, on the other hand, and who shall
not then be, and prior thereto shall not have been, retained by either of Seller
or Buyer, except for the resolution of disputes pursuant to the Purchase
Agreement. The Experts shall be instructed to, and shall, determine and report
to Seller and Buyer, upon the remaining disputed items no later than twenty (20)
days after submission of such items to the Experts. The report of the Experts
shall be limited to calculation of the Initials Inventory LDP Cost of any items
of Existing Continuing Initials Inventory delivered to Buyer. Such report shall
be final, binding and conclusive on the parties hereto. The fees and
disbursements of the Experts shall be borne equally by Seller, on the one hand,
and Buyer, on the other hand. Seller and Buyer shall each bear the fees and
disbursements of their own accountants and other advisors.
(c) Within three (3) days following the resolution of all disputed
items by Seller and Buyer, or by the Experts as applicable, the Purchase Price
shall be adjusted based on such resolution and Seller shall pay to Buyer or
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Buyer shall pay to Seller, as the case may be, the amount of the adjustment of
the Purchase Price, without interest, by wire transfer in immediately available
funds in accordance with wire transfer instructions provided by one of the
parties to the other.
3.6 Delivery of Inventory. Not later than the close of business on
the Initials Closing Date, Seller will assemble the Existing Continuing Initials
Inventory and shall place it at a loading dock or other accessible place at such
locations as Seller shall designate, which other locations shall be reasonably
acceptable to Buyer, and, on the Initials Closing Date, Buyer's employees,
agents or independent contractors retained by Buyer will load such Existing
Continuing Initials Inventory onto trucks or other transportation vehicles
provided by Buyer or independent contractors retained by Buyer. Subject to
Section 3.4(c), once Buyer takes delivery of the Existing Continuing Initials
Inventory, Buyer shall be deemed to have accepted such inventory and shall be
thereafter estopped from claiming that any of such inventory, when delivered to
Buyer hereunder, was damaged or defective. Risk of loss (including risk of
damage or destruction) of such Existing Continuing Initials Inventory shall pass
to Buyer upon delivery of the Existing Continuing Initials Inventory to Buyer on
the later of the Initials Closing Date or the actual delivery of the Existing
Continuing Initials Inventory. The sale of the Existing Continuing Initials
Inventory hereunder shall be evidenced by a Bill of Sale executed by Seller, to
be delivered to Buyer at the Initials Closing (the "Initials Bill of Sale").
Until Buyer's employees, agents or independent contractors retained by Buyer
load the Existing Continuing Initials Inventory onto a truck or other
transportation vehicles provided by Buyer or such independent contractors,
Seller shall maintain insurance as provided in Section 8.1.
3.7 Assumption of Initials Purchase Commitments. At the Initials
Closing, and subject to the terms and conditions hereof, Seller shall assign to
Buyer, and Buyer shall assume and agree to pay, perform and discharge when due
and payable, in accordance with their respective terms all purchase commitments
for Initials Inventory to which Seller is bound on the Initials Closing Date and
which were incurred by Seller with the prior written approval of Buyer (the
"Initials Commitments"). Seller shall provide to Buyer, no later than ten (10)
business days prior to the Initials Closing, a list of the Initials Commitments
and complete and correct copies thereof. Such assignment and assumption shall be
evidenced by execution or delivery of an Assignment and Assumption Agreement
with respect to the Initials Commitments (the "Initials Assignment and
Assumption Agreement").
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ARTICLE IV
INTENTIONALLY OMITTED
ARTICLE V
CLOSINGS
5.1 R&S Closing. The closing of the sale and purchase of the R&S
Inventory (the "R&S Closing") shall be held concurrently with the signing of
this Agreement at the offices of Buyer, or its counsel, in New York City, or at
such other place as the parties may agree upon, as of the date hereof.
5.2 Seller at R&S Closing. At the R&S Closing, Seller shall deliver
to Buyer:
(a) the R&S Inventory to be purchased and transferred to Buyer
hereunder in the manner contemplated by Section 2.5;
(b) the R&S Bill of Sale;
(c) the R&S Assignment and Assumption Agreement; and
(d) termination statements (which statements shall be delivered to
Buyer at the R&S Closing for filing), lien releases and satisfactions of liens,
in form and substance reasonably satisfactory to Buyer, evidencing the
termination, release and satisfaction of all security interests, rights of first
refusal, first offer or similar rights, claims, liens, charges or other
encumbrances of any kind on the R&S Inventory or a certificate executed by the
Member Manager of Seller or such other duly authorized representative of Seller
reasonably acceptable to Buyer, dated the date hereof, certifying that there are
no such security interests, rights of first refusal, first offer or similar
rights, claims, liens, charges or other encumbrances of any kind on the R&S
Inventory.
5.3 Buyer at R&S Closing. At the R&S Closing, Buyer shall deliver to
Seller the R&S Purchase Price in the manner contemplated by Section 2.2.
5.4 Initials Closing. The closing of the sale and purchase of the
Existing Continuing Initials Inventory (the "Initials Closing") shall be held at
the offices of Buyer, or its counsel, in New York City, or at such other place
as the parties may agree upon, at 9:30 a.m. ten (10) business days after Seller
shall have notified Buyer in writing that Seller has completed shipping its Fall
1999 collection, but in no event later than October 15, 1999 (and in the event
that such notice shall not be given by September 30, 1999, the Closing shall be
held on October 15, 1999), or as may otherwise be mutually agreed upon by the
parties (such date and time of the Closing being herein referred to as the
"Initials Closing Date").
5.5 Seller at Closing. At the Initials Closing, Seller shall deliver
to Buyer:
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(a) the Existing Continuing Initials Inventory to be purchased and
transferred to Buyer hereunder in the manner contemplated Sections 3.4 and 3.6;
(b) an officer's certificate, as required by 10.1(c);
(c) the Initials Bill of Sale; and
(d) the Initials Assignment and Assumption Agreement.
5.6 Buyer at Closing. At Closing, Buyer shall deliver to Seller:
(a) an officer's certificate, as required by 10.2(c);
(b) the Purchase Price in the manner contemplated by Section 3.2; and
(c) the Initials Assignment and Assumption Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer on and as of the date hereof
as follows:
6.1 Organization. Seller is a limited liability company validly
existing and in good standing under the laws of the State of New York and has
all requisite power and authority to enter into this Agreement, the R&S Bill of
Sale and the Initials Bill of Sale (the "Bills of Sale"), the R&S Assignment and
Assumption Agreement and the Initials Assignment and Assumption Agreement (the
"Assignment and Assumption Agreements") and its officer's certificates required
by Section 5.2(d), if applicable, and Section 10.1(c) (the Agreement, the Bills
of Sale, the Assignment and Assumption Agreements and such officer's
certificates are sometimes collectively hereinafter referred to as the "Seller
Documents") and to carry out the transactions contemplated hereby and thereby.
6.2 Execution Delivery and Performance. Except as set forth on
Schedule 6.2, the authorization, execution, delivery and performance of this
Agreement and the other Seller Documents, and the consummation by Seller of the
transactions contemplated hereby and thereby, will not (i) conflict with or
result in a breach of the articles of organization or the operating agreement of
Seller, or any other constituent documents of Seller, (ii) violate any U.S. or
foreign laws, statutes or regulations to which Seller is subject or by which
Seller or its assets are bound, (iii) violate any order, writ, injunction,
judgment, award, arbitration or decree of any court, governmental body,
administrative agency, arbitrator or other competent authority (collectively,
"Orders") to which Seller or its assets are subject, (iv) violate, conflict
with, result in or constitute (with the giving of notice, the lapse of time, or
both) a breach or default under, or result in the termination or acceleration
of, any material agreement, mortgage, indenture, note, lease, license, insurance
policy, or other material commitment, obligation or instrument to which Seller
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is a party or by which Seller or any of its properties or assets is bound
(collectively, the "Seller's Contracts"), or (v) create or impose any lien on
any R&S Inventory or the Existing Continuing Initials Inventory pursuant to any
Seller's Contract. Except for the FTC Approval and as otherwise set forth on
Schedule 6.2, no consent, approval or authorization of, notice to, or filing or
registration with, any court, governmental body, administrative agency,
arbitrator or other competent authority, or any other person or entity, is
required, pursuant to the terms of any of the Seller's Contracts, applicable law
or any Orders to which Seller or its assets are subject, to be made or obtained
by Seller in connection with the execution, delivery and performance by Seller
of this Agreement or the other Seller Documents and the consummation of the
transactions contemplated hereby and thereby.
6.3 Authority. All proceedings required to be taken by Seller to
authorize the execution, delivery and performance of this Agreement and the
other Seller Documents to which it is or will be a party have been properly
taken. This Agreement constitutes, and each of the other Seller Documents, when
duly executed and delivered by Seller, will constitute, the valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy and
other laws affecting the enforceability of creditors' rights generally or laws
governing the availability of specific performance or other equitable remedies.
6.4 Inventory. At the R&S Closing, Seller will transfer the R&S
Inventory to Buyer in accordance with this Agreement, and pursuant to the R&S
Bill of Sale, will transfer, assign and convey to, and vest in, Buyer good title
to the R&S Inventory, free and clear of any security interests, rights of first
refusal, first offer or similar rights, claims, liens, charges or other
encumbrances of any kind other than those created by or imposed upon Buyer. At
the Initials Closing, Seller will transfer the Existing Continuing Initials
Inventory to Buyer in accordance with this Agreement and, pursuant to the
Initials Bill of Sale, will transfer, assign and convey to, and vest in, Buyer
good title to the Existing Continuing Initials Inventory, free and clear of any
security interests, rights of first refusal, first offer or similar rights,
claims, liens, charges or other encumbrances of any kind other than those
created by or imposed upon Buyer.
6.5 Litigation. Except as set forth on Schedule 6.5, there are no
actions, suits, arbitrations or proceedings pending against Seller, or, to the
Actual Knowledge (as hereinafter defined) of Seller, threatened (and Seller has
not received written notice of any such threatened action, suit, arbitration or
proceeding), at law, in equity, in arbitration or by or before any other
authority, involving or affecting any of the R&S Inventory or Existing
Continuing Initials Inventory or any of the transactions contemplated by this
Agreement or the other Seller Documents. Seller is not in default with respect
to any judgment, order, writ, injunction, award, arbitration, decree or consent
of any court, governmental body, administrative agency, arbitrator or other
competent authority involving or affecting any of the R&S Inventory or the
Existing Continuing Initials Inventory, or any of the transactions contemplated
by this Agreement or the other Seller Documents. Solely for the purposes of this
Agreement, the term "Actual Knowledge" shall mean the actual knowledge of Frank
Mori, Tomio Taki, Beverly Katz and Lawrence Stern.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
7.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to enter into this Agreement, the
Assignment and Assumption Agreements and its officer's certificate required by
Section 10.3(c) (the Agreement, the Assignment and Assumption Agreements and
such officer's certificates are sometimes collectively hereinafter referred to
as the "Buyer Documents"), and to carry out the transactions contemplated hereby
and thereby.
7.2 Execution Delivery and Performance. The authorization, execution,
delivery and performance of this Agreement and the Buyer Documents, and the
consummation by Buyer of the transactions contemplated hereby and thereby, will
not (i) conflict with or result in a breach of Buyer's certificate of
incorporation or by-laws, (ii) violate any U.S. or foreign laws, statutes or
regulations to which Buyer is subject or by which Buyer or its assets are bound,
(iii) violate any Order to which Buyer or its assets is subject, or (iv)
violate, conflict with, result in or constitute (with the giving of notice, the
lapse of time, or both) a breach or default under, or result in the termination
or acceleration of, any material agreement, mortgage, indenture, note, lease,
license, insurance policy, or other material commitment, obligation or
instrument to which Buyer is a party or by which Buyer or any of its properties
or assets is bound (collectively, the "Buyer Contracts"). Except for the FTC
Approval, or as otherwise provided on Schedule 7.2, no consent, approval or
authorization of, notice to, or filing or registration with, any court,
governmental body, administrative agency, arbitrator or other competent
authority, or any other person or entity, is required, pursuant to the terms of
any of the Buyer Contracts, applicable law, or any Orders to which Buyer or its
assets are subject, to be made or obtained by Buyer in connection with the
execution, delivery and performance by Buyer of this Agreement or the other
Buyer Documents and the consummation of the transactions contemplated hereby and
thereby.
7.3 Authority. All proceedings required to be taken by Buyer to
authorize the execution, delivery and performance of this Agreement and the
other Buyer Documents have been properly taken. This Agreement constitutes, and
each of the other Buyer Documents, when duly executed and delivered by Buyer,
will constitute, the valid and binding obligations of Buyer, enforceable against
it in accordance with its terms, except as such enforcement may be limited by
bankruptcy and other laws affecting the enforceability of creditors', rights
generally or laws governing the availability of specific performance or other
equitable remedies.
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ARTICLE VIII
ADDITIONAL AGREEMENTS REGARDING THE BUSINESS
8.1 Operation and Wind Down of Business.
(a) Seller and Buyer will cooperate in the wind down of the Business
in an orderly manner in accordance with the terms of this Agreement and the
other Transaction Documents. During the period from the date hereof through the
time of delivery of the Existing Continuing Initials Inventory pursuant to
Section 3.6, Seller shall keep in full force and effect insurance comparable in
amount and scope to that now maintained with respect to the Initials Inventory.
(b) All of Seller's inventory, other than (i) the R&S Inventory after
the R&S Closing, (ii) the Existing Continuing Initials Inventory after the
Initials Closing and (iii) any other inventory of Seller acquired by Buyer
pursuant to the Transaction Documents after a closing of such acquisition (the
"Prior Inventory"), shall remain the property of Seller and may be sold by
Seller as provided in the Transaction Documents. Seller shall retain all
accounts receivables resulting from sales by Seller of the Prior Inventory
("Seller's Accounts Receivable"), including any adjustments, deductions,
chargebacks and other charges from the customers. Buyer shall promptly remit to
Seller any payments received by Buyer relating to Prior Inventory or Seller's
Accounts Receivable. Seller shall promptly remit to Buyer any payments received
by Seller relating to Buyer's accounts receivable. If a customer remits payment
and designates an invoice or receivable being paid, such designation shall be
binding upon the parties (unless such customer has made an incorrect
designation). In the event a customer remits payment to any party without
designating an invoice or receivable being paid, such party shall have twenty
(20) business days within which to contact the customer to seek a designation by
such customer. In the event the customer designates an invoice or account
receivable being paid within such twenty-day period, such designation shall be
binding upon the parties (unless such customer has made an incorrect
designation). In the event the customer cannot or does not designate an invoice
or receivable within such twenty-day period, such payment shall be credited to
the oldest outstanding receivable of such customer.
8.2 11 West 42nd Street Premises. (a) The parties intend that on or
before May 31, 1999, (i) Buyer and the landlord (the "Landlord") of Seller's
leased office space located at 11 West 42nd Street, New York, New York 10036
will enter into a new lease (the "New Lease") for the 20th and 21st floors and
the portion of the 22nd floor as is presently used by Seller for use in
connection with its computer system at such location (the "Floors"), on the same
economic and on substantially the same other terms and conditions, on a
proportionate basis, as are set forth in the Lease dated as of June 1996 between
11 West 42 Limited Partnership and Anne Klein & Company and Mark of the Lion
Associates (the "42nd Street Lease") and on such other terms and conditions as
may be reasonably satisfactory to Buyer and the Landlord, and (ii) Seller and
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the Landlord shall enter into an amendment (the "Lease Amendment") to the Lease
removing the Floors therefrom, on terms and conditions, including, without
limitation, the release by the Landlord of Seller and its predecessors and
Takihyo from any liability accruing or arising from and after commencement of
the New Lease for rental and any other charges or other obligations attributable
to the Floors under the 42nd Street Lease, as may be reasonably satisfactory to
Seller and the Landlord. Buyer shall not enter into a New Lease, and Seller
shall not be obligated to surrender the Floors, unless and until the Landlord
and Seller shall have executed and delivered to the other the Lease Amendment.
The parties acknowledge that the transactions contemplated above in this Section
8.2 may be structured in another manner or on other terms. From the date hereof,
Buyer and Seller shall use commercially reasonable efforts to promptly and
jointly consult and reach a mutually acceptable agreement with the Landlord
regarding the foregoing.
(b) In the event that Buyer shall enter into the New Lease and Seller
shall enter into the Lease Amendment, Buyer will provide to Seller, at no
rental, office space reasonably determined by Buyer for not more than five (5)
of Seller's employees for the period from and after the date of the New Lease to
and including March 1, 2000 and shall furnish to Seller, at Seller's cost, phone
and telecopier services during such period; provided, that (i) the Landlord
shall have consented in writing to the foregoing and all other approvals and
consents necessary for the foregoing, in Buyer's commercially reasonable
judgment, shall have been obtained by Buyer, (ii) the use of such office space
by Seller and its employees shall at all times be subject to the terms and
conditions of the New Lease (other than the rental and other payment provisions
thereof), (iii) the rights of Seller in such office space shall at all times be
subordinate to the New Lease and (iv) Seller's and its employees' right to use
such office space shall be subject at all times to compliance by Seller and its
employees with items (ii) and (iii) of this Section 8.2(b). In the event that
the transactions contemplated by Section 8.2 shall be structured in a manner or
on terms other than as the New Lease, Buyer and Seller shall use their
commercially reasonable efforts to agree on the terms and conditions under which
the forgoing office space shall be made available to Seller.
8.3 Certain Employment Agreements. Seller has previously delivered to
Buyer a complete and correct copy of the employment agreements dated December
17, 1996, between Seller and each of Kenneth Kaufman and Isaac Franco. Promptly
after the execution and delivery of this Agreement, Buyer shall contact Messrs.
Kenneth Kaufman and Isaac Franco and shall offer to each of them employment with
Kasper commencing on the earlier of (a) the date on which the closing of the
transactions contemplated in the Purchase Agreement occurs or (b) the date on
which the Purchase Agreement is terminated, which offer shall at all times be
conditioned in writing upon the release by each such individual of Seller and
Takihyo and their respective directors, officers, stockholders and controlling
persons from any and all liabilities or obligations arising out of or in
connection with their respective employment by Seller and its predecessors.
Unless and until Seller shall have notified Buyer that such a release has been
obtained from such individual, Kasper will not employ Messrs. Kaufman or Franco.
Seller shall notify Buyer promptly upon obtaining such a release. From time to
time after the date hereof, Buyer shall keep Seller informed of the status of
such offers and the acceptance thereof. Seller shall be solely responsible for
obtaining the release by Messrs. Kenneth Kaufman and Isaac Franco and Buyer
shall have no obligation or responsibility therefor.
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8.4 Option to Acquire Other Assets. Buyer is hereby granted a right
of first offer and negotiation on the following terms and conditions, effective
from the date hereof until the Initials Closing Date, with respect to the
tangible assets used by Seller in connection with the Business, including
inventory, work-in process, piece goods, office equipment and finishings but
excluding (a) the 22nd (other than the portion of the 22nd floor as is presently
used by Seller for use in connection with its computer system) and the 23rd
floors of Seller's offices at 11 West 42nd Street, New York, N.Y., (b) (i)
Seller's leasehold interest in the warehouse in Lyndhurst, N.J. and any of
Seller's equipment, furniture and finishings at such warehouse and (ii) Sellers
leasehold interest in its office space located in Dallas, Texas and any of
Seller's equipment, furniture and finishings at such location, (c) the R&S
Inventory, (d) Initials Inventory, (e) the leasehold interests covered in
Section 8.2 and (f) any other assets otherwise expressly provided for in the
Transaction Documents, including, without limitation, the Assets (as such term
is defined in the Purchase Agreement) (the "Miscellaneous Assets"):
(a) If Seller desires to dispose of its interest in any of the
Miscellaneous Assets, Seller shall first notify Buyer and Buyer shall, within
two (2) Business Days thereafter, notify Seller whether it is interested in
acquiring such Miscellaneous Assets. Buyer and Seller shall thereafter negotiate
in good faith for five (5) Business Days regarding the terms and conditions,
including price, on which Buyer would acquire such Miscellaneous Assets. If
Buyer and Seller agree on the terms and conditions of Buyer's acquisition of
such Miscellaneous Assets, then such transaction shall be consummated as soon as
practicable after such agreement is reached.
(b) If Buyer and Seller do not agree on the terms and conditions of
Buyer's acquisition of such Miscellaneous Assets, then Seller shall thereafter
be entitled to dispose of such Miscellaneous Assets to any person or entity
provided that such disposition is on (i) economic terms that are not materially
less favorable to Seller than the terms and conditions offered by Buyer for such
Miscellaneous Assets and (ii) terms and conditions which, in the aggregate, are
not materially less beneficial to Seller than the terms and conditions offered
by Buyer for such Miscellaneous Assets.
(c) If any Miscellaneous Assets to be acquired by Buyer are rights of
Seller under any lease, license or other third party contract, then Buyer's
acquisition of such rights will in all events be subject to Buyer's assumption
of all obligations and liabilities under such lease, license or contract and the
obtaining of such third party's consent and release from all obligations or
liabilities thereunder for the benefit of Seller, its affiliates and their
respective directors, officers, members, stockholders and controlling parties.
(d) The foregoing option shall not be applicable to the sale of
inventory in the ordinary course of the Seller's Business. In addition, nothing
in this Section 8.4 shall be deemed to permit the sale of Assets (as defined in
the Purchase Agreement) except as expressly set forth in the Purchase Agreement.
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8.5 Further Assurances. Consistent with the terms and conditions
hereof, each party hereto shall cooperate with each other and execute and
deliver any and all instruments and take any and all other actions, either
before or after the Initials Closing, as applicable, which may be necessary,
proper or advisable to effect or evidence the provisions of this Agreement and
to consummate the transactions contemplated hereby.
ARTICLE IX
CERTAIN AGREEMENTS OF THE PARTIES
9.1 Access to Personnel; Inspection of Information and Documents; and
Cooperation. (a) Subject to the last two sentences in this Section 9.1(a), and
subject to the prior approval of Mr. Frank Mori (which approval shall be granted
or denied in the commercially reasonable judgment of Mr. Mori), prior to the
Initials Closing upon reasonable notice, (i) Seller shall afford Buyer and its
Representatives reasonable access during regular business hours during the
period from the date hereof up to and including the Initials Closing to any and
all of the premises, properties, contracts, books, records, data and personnel
of Seller relating to the transactions covered by this Agreement and (ii) Seller
shall, and shall use reasonable efforts to cause each of its directors,
officers, members, managers, agents and/or employees, to cooperate in a
reasonable manner in connection with the foregoing. In the event that Buyer or
its Representatives shall desire such access or any such information or
documents concerning the transactions covered by this Agreement, Buyer, through
its Chairman of the Board, Chief Operating Officer, or Executive Vice
President-Finance and Administration, shall provide the aforementioned
reasonable notice in accordance with Section 12.2. Subject to the discretion of
Mr. Mori as described above, Seller shall afford Buyer and its Representatives
such access or such information or documents, as the case may be, in each case
to the extent consistent with the foregoing provisions of this Section 9.1(a)
within a reasonable time after the request therefor is made in accordance with
this Section 9.1(a).
(b) Seller hereby covenants that prior to the Initials Closing,
Seller will promptly notifying Buyer of any pending claim, suit, proceeding,
arbitration or investigation in or by any court, governmental body,
administrative agency, arbitrator or other competent authority relating to the
Existing Continuing Initials Inventory, or which is threatened against Seller,
of which Seller has Actual Knowledge or receives written notice.
9.2 FTC Approval. As promptly as practicable after the execution and
delivery of this Agreement and the other Transaction Documents, Seller and Buyer
shall each file or cause to be filed a notification and report form under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), with the Federal Trade Commission and the Department of Justice. The
purchase of the Existing Continuing Initials Inventory, the payment of the
Purchase Price and the consummation of the transactions contemplated hereby,
except those transactions set forth in Article II and the provisions of this
Section 9.2 and Articles XI and XII, are expressly and absolutely subject, in
each case, to the expiration or termination of all applicable waiting periods
under the HSR Act, without any party hereto (or, if different, any "person" in
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which such party is included for purposes of the HSR Act) having been formally
or informally advised by the Federal Trade Commission or the Department of
Justice that either of them will or may seek to enjoin the consummation of, or
otherwise will or may challenge, the transactions contemplated by this Agreement
or the other Transaction Documents and without either Seller or Buyer (or their
respective "persons") being obligated to divest itself of any assets or
reorganize its existing corporate structures ("FTC Approval"). Each of Seller
and Buyer shall use its best efforts to prosecute all such applications, as soon
as possible after the filing thereof, and will cooperate with the other and take
all steps reasonably necessary, proper or desirable to expedite the prosecution
of such applications (provided that there is no obligation to agree to any
divestiture or reorganization).
9.3 Employee Matters. (a) Buyer shall have the right, but shall not
be obligated, to hire or otherwise establish an independent contractor,
consultant or other business relationship with (collectively "Hire") any
employees of Seller, but shall have no right to Hire any employees of Seller's
licensing operations unless and until the closing of the transactions
contemplated under the Purchase Agreement are consummated, although Buyer shall
not be restricted from making offers to Hire such employees provided such offers
are conditioned on the consummation of such closing. Buyer shall provide to
Seller reasonable advance written notice of any employee of Seller to whom Buyer
intends to extend an offer to Hire and shall keep Seller informed of the status
of any such offer and the acceptance thereof.
(b) In the event that Seller shall notify Buyer in writing that any
employees of Seller who are not represented by a labor organization to whom
Buyer intends to extend or shall have extended an offer to Hire shall be, in the
commercially reasonable judgment of Frank Mori, necessary to the wind-down of
the Business as contemplated by the Omnibus Agreement, the Purchase Agreement
and the License Agreement, Seller and Buyer shall in good faith attempt to agree
upon a sharing arrangement with respect to such employees on terms and
conditions reasonably acceptable to both Seller and Buyer; provided, that any
such sharing arrangement shall contain, among other things, the following terms:
(i) within thirty (30) days after receipt by Buyer from Seller of vouchers
and/or receipts or other documentation reasonably requested by Buyer, Buyer
shall reimburse Seller with respect to the services of any employee of Seller
who shall perform services for Buyer pursuant to any such sharing arrangement in
an amount equal to the pro rata portion of such employee's salary based upon the
portion of such employee's working time spent in performing such services, and
(ii) if Buyer shall fail to reimburse Seller for such pro rata portion of the
salary of any shared employee as provided above in this Section 9.3(b), and such
failure shall continue for a period of three (3) business days after Seller
shall have notified Buyer, in accordance with Section 12.2 hereof, of such
failure, Seller shall have the right to terminate the sharing arrangement with
respect to such employee. In such event, except for the pro rata portion of the
salary of such employee that Buyer shall not have paid, neither Seller or Buyer
shall have any further rights or obligations with respect to such sharing
arrangement.
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(c) Seller has advised Buyer as to its current severance practice
(the "Severance Practice") with regard to its employees who are not represented
by a labor organization, and has provided Buyer with such information with
regard to such employees reasonably requested by Buyer. If Buyer Hires any such
employee during the twelve-week period from and after the termination of such
employee's employment with Seller and Seller shall have paid or committed to pay
to such employee severance in accordance with the terms and conditions of the
Severance Practice, Buyer shall, within five (5) business days, after written
notice by Seller to Buyer of the actual payment of such severance and upon
receipt from Seller of documentation reasonably satisfactory to it in respect of
such severance payments, reimburse Seller for such severance payments. The
foregoing severance reimbursement shall not, in any event, include reimbursement
for severance paid or payable under any oral or written employment agreement, or
other arrangement (other than the Severance Practice), between Seller and any of
its employees.
9.4 Cooperation on Retail Stores. Seller shall cooperate with Buyer,
to the extent and in the manner it shall determine in its sole and absolute
discretion, in Buyer's efforts to obtain an agreement to purchase the retail
store operations of Fashions of Seventh Avenue, Inc.
9.5 Transfer Tax Filings. Each tax return (and any exemption,
clearance or similar filing or certificate) with respect to any sales, use,
transfer, stamp, value-added, motor vehicle transfer or registration,
documentary, registration, recording, excise, real estate transfer or similar
taxes or fees ("Transfer Taxes") required to be paid to any relevant taxing
authority (or for which an exemption is being sought) in connection with the
transactions contemplated by this Agreement shall be timely filed by the party
legally obligated to file such tax return (or exemption, clearance or similar
filing or certificate) with respect thereto. In this regard, Seller and Buyer
agree to cooperate, and to cause their respective affiliates to cooperate, with
each other in the making of all such filings required in connection with any
such Transfer Taxes. Buyer shall deliver to Seller prior to the Initials Closing
Date all exemption, clearance, resale or similar certificates which would under
applicable law enable the transactions contemplated by this Agreement to be
exempt from any Transfer Taxes.
9.6 Actions with Respect to Initials Closing. Seller and Buyer agree
to use their commercially reasonable efforts to bring about the satisfaction of
the conditions to the Initials Closing set forth in Article X of this Agreement
and to cause the covenants and agreements contained in this Agreement to be
satisfied and performed hereunder by each of them.
ARTICLE X
CONDITIONS PRECEDENT TO CLOSING AND OTHER OBLIGATIONS
10.1 Conditions Precedent to Buyer's Obligations. All obligations of
Buyer to consummate the Initials Closing shall be subject, at the option of
Buyer, to fulfillment of each of the following conditions at or prior to the
Initials Closing:
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(a) Representations and Warranties. All representations and
warranties of Seller contained herein shall be true and correct in all material
respects when made and as of the date hereof, and as of the Initials Closing;
provided, that any representation and warranty which refers or relates to the
R&S Inventory shall be true and correct only when made and as of the date
hereof.
(b) Covenants. All covenants, agreements and obligations required by
the terms of this Agreement or any document delivered pursuant hereto, to be
executed or performed by Seller at or before the Initials Closing, shall have
been duly and properly executed and performed in all material respects
(c) Officer's Certificate. There shall have been delivered to Buyer a
certificate executed by the Managing Member(s) of Seller or such other duly
authorized representatives of Seller reasonably acceptable to Buyer, dated as of
the Initials Closing Date certifying that the applicable conditions set forth in
Sections 10.1(a) and (b) have been fulfilled.
(d) Documentation. All documents, agreements, instruments and
certificates required to be delivered hereunder to Buyer at or prior to the
applicable Closing shall have been so delivered.
(e) No Orders. There shall not be in effect any injunction or order
restraining, enjoining, prohibiting or invalidating this Agreement or the
consummation of the transactions contemplated hereby and no action, suit,
arbitration or proceeding shall be pending or threatened in writing before any
court, governmental body, administrative agency, arbitrator or other competent
authority which seeks to restrain or prohibit, or to obtain damages or a
discovery order in respect of, this Agreement or the consummation of the
transactions contemplated hereby.
(f) Consents. The consents and approvals set forth on Schedule
10.1(f) shall have been obtained.
(g) Lien Releases. Buyer shall have received termination statements
(which statements shall be delivered to Buyer at the Initials Closing for
filing), lien releases and satisfactions of liens, in form and substance
reasonably satisfactory to Buyer, evidencing the termination, release and
satisfaction of all security interests, rights of first refusal, first offer or
similar rights, claims, liens, charges or other encumbrances of any kind on the
Existing Continuing Initials Inventory.
10.2 Conditions Precedent to Certain Other Obligations. Seller's
obligations under Section 8.4 are expressly subject to obtaining any consents,
approvals, waivers and releases Seller deems necessary in its commercially
reasonable judgment from lessors, licensors or other relevant third parties
under relevant leases, licenses or other contracts; provided, that in obtaining
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such consents, approvals, waivers or releases Seller shall not be obligated to
pay any additional consideration to or incur additional liabilities for the
benefit of the applicable lessor, licensor or other third party.
10.3 Conditions Precedent to Seller's Obligations. All obligations of
Seller to consummate the Closing shall be subject, at the option of Seller, to
fulfillment of each of the following conditions at or prior to the Initials
Closing:
(a) Representations and Warrants. All representations and warranties
of Buyer contained herein or in any document delivered pursuant hereto shall be
true and correct in all material respects when made and as of the Closing.
(b) Covenants. All covenants, agreements and obligations required by
the terms of this Agreement, or any document delivered pursuant hereto to be
executed or performed by Buyer at or before the Closing shall have been duty and
properly executed and performed in all material respects.
(c) Officer's Certificate. There shall have been delivered to Seller
a certificate executed by the President or a Vice President and the Secretary or
an Assistant Secretary of Buyer, or other duty authorized representatives of
Buyer reasonably acceptable to Seller, dated as of the Initials Closing Date,
certifying that the conditions set forth in Sections 10.3(a) and (b) have been
fulfilled.
(d) Documentation. All documents, agreements, instruments and
certificates required to be delivered hereunder to Seller at or prior to the
Closing shall have been so delivered.
(e) No Orders. There shall not be in effect any injunction or order
restraining, enjoining, prohibiting or invalidating this Agreement or the
consummation of the transactions contemplated hereby and no action, suit,
arbitration or proceeding shall be pending or threatened in writing before any
court, governmental body, administrative agency, arbitrator or other competent
authority which seeks to restrain or prohibit, or to obtain damages or a
discovery order in respect of, this Agreement or the consummation of the
transactions contemplated hereby.
(f) Consents. The consents and approvals set forth on Schedule
10.3(f) shall have been obtained.
ARTICLE XI
INDEMNIFICATION; FINDERS
11.1 Indemnification by Seller. Seller shall indemnify, defend and
hold Buyer and its affiliates and its and their respective stockholders,
officers, directors, employees, affiliates and agents (the "Buyer Indemnified
Parties) harmless from and against any and all losses, liabilities, claims,
demands, investigations, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) of every kind, nature
and description (collectively, "Claims") to which any of the Buyer Indemnified
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Parties becomes subject based upon, or arising out of or otherwise in respect
of: (a) except with regard to the obligations and liabilities assumed by Buyer
under the Assumed Agreements (as defined in the Purchase Agreement) pursuant to
the Purchase Agreement, the Initials Commitments and the R&S Purchase
Commitments (which obligations and liabilities, Initials Commitments and R&S
Commitments shall in no event include the Excluded Liabilities, as defined in
the Purchase Agreement), the business of Seller (but in no event including the
Purchaser's Liabilities (as such term is defined in the Purchase Agreement)),
including, without limitation, Claims relating to (i) arrangements with
suppliers, vendors, contractors, warehousemen, shippers, distributors and
customers of the business, and any Claims with respect to credits, refunds or
charge backs for products or other financial terms of such arrangements, or (ii)
products manufactured, distributed or sold by Seller including, but not limited
to, product liability, false advertising and improper labeling claims; or (b)
any breach of any representation, warranty, covenant or agreement of Seller
contained in this Agreement or the other Seller Documents.
11.2 Indemnification by Buyer. Buyer shall indemnify, defend and hold
Seller and its affiliates and its and their respective members, stockholders,
partners, officers, directors, employees, affiliates and agents (the "Seller
Indemnified Parties") harmless from and against any and all Claims to which any
of the Seller Indemnified Parties becomes subject, based upon, arising out of or
otherwise in respect of (a) any breach of any representation, warranty, covenant
or agreement of Buyer contained in this Agreement or the other Buyer Documents,
(b) the R&S Inventory and the R&S Purchase Commitments following the date hereof
to the extent that such Claim is based upon, arises out of or is otherwise in
respect of any act or omission to act by Buyer after the date hereof and (c) the
Existing Continuing Initials Inventory and the Initials Commitments following
the Initials Closing Date to the extent that such Claim is based upon, arises
out of or is otherwise in respect of any act or omission to act by Buyer after
the Initials Closing Date.
11.3 Notice and Opportunity to Defend. Promptly after receipt by
either party hereto of notice of the assertion of any Claim or discovery of any
facts upon which such party expects to make a claim for indemnification
hereunder, such party (the "Indemnified Party") shall give the other party who
may become obligated to provide indemnification hereunder (the "Indemnifying
Party") written notice describing such Claim or facts in reasonable detail;
provided, however, that any delay or failure by an Indemnified Party to provide
such notice shall not impair or affect its rights hereunder or the obligation of
the Indemnifying Party with respect to such Claim, except to the extent the
Indemnifying Party can demonstrate that it was prejudiced by the Indemnified
Party's delay in giving or failure to give such notice. Such Indemnifying Party
shall have the right, at its option, to compromise or defend, at its own expense
and by its own counsel, any such matter involving the asserted liability of the
Indemnified Party; provided, however, that no Indemnifying Party shall
compromise or settle any asserted liability (except a liability settled or
compromised for monetary consideration or damages only payable solely by other
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than the Indemnified Party and such compromise or settlement provides for a full
and unconditional release of the claims asserted against the Indemnified Party
and its affiliates) without the prior written consent of the Indemnified Party
(such consent not to be unreasonably withheld). If any Indemnifying Party shall
undertake to compromise or defend any such asserted liability, it shall promptly
notify the Indemnified Party of its intention to do so, and shall diligently
defend against such claims with counsel reasonably acceptable to the Indemnified
Party. The Indemnified Party agrees to reasonably cooperate with the
Indemnifying Party and its counsel in the compromise of, or defense against, any
such asserted liability. No Indemnified Party shall compromise or settle any
asserted liability (except a liability settled or compromised for monetary
consideration or damages only payable solely by other than the Indemnifying
Party and such compromise or settlement provides for a full and unconditional
release of the claims asserted against the Indemnifying Party and its
affiliates) without the prior written consent of the other Indemnifying Party.
In any event, the Indemnified Party shall have the right at its own expense and
by its own counsel to participate in the defense of such asserted liability;
provided, however, that if after having notified the Indemnified Party of its
intention to assume the defense of a claim or asserted liability as aforesaid,
the Indemnifying Party fails to do so in a reasonably prompt and diligent manner
or the Indemnified Party is advised in writing by counsel reasonably
satisfactory to the Indemnifying Party that there probably is a conflict between
the interests of the Indemnified Party and the Indemnifying Party with respect
to such defense under the applicable code or rules of Professional
Responsibility, then in either such case the Indemnifying Party shall be
responsible for the reasonable fees and expenses of one firm of separate counsel
for the Indemnified Party. Except as may otherwise be agreed in writing between
an Indemnifying Party and an Indemnified Party, from and after the R&S Closing,
with regard to matters based upon, or arising out of or otherwise in respect of
the R&S Inventory and the R&S Closing, and from and after the Initials Closing,
with regard to all other matters contained herein, as applicable, an
Indemnifying Party shall not be deemed liable under this Article XI with respect
to third party claims unless and until (i) any final judgment or award shall
have been rendered by a court, arbitration board or administrative agency of
competent jurisdiction with respect to such claim and the time in which to
appeal therefrom shall have expired, or (ii) a settlement of such claim shall
have been agreed to with the third party in compliance with this Article XI
which requires the payment of monetary damages by the Indemnifying Party.
11.4 Finders. Each of the parties hereto represents to the other that
no finder, broker, agent or other intermediary has acted on behalf of such party
in connection with the introduction or bringing together of the parties hereto,
or the negotiation or consummation of the transactions contemplated by this
Agreement (except for the financial advisors of each party identified on
Schedule 11.4 hereto), and each party shall indemnify the other and hold it
harmless against all fees, losses, costs, expenses (including reasonable
attorneys', fees and expenses), liabilities and damages, if any, arising from
the employment or other engagement by such party or services rendered to such
party (or any allegation having a reasonable basis of any such employment or
other engagement or services) of any finder, broker, agent or other intermediary
(and the financial advisors of each party identified on Schedule 11.4 hereto) in
such connection.
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11.5 Survival. The representations and warranties of the parties
contained in this Agreement and the parties' indemnification obligations under
this Article XI shall survive for a period of two (2) years after the Initials
Closing Date; provided, that if any Indemnified Party shall have given to an
Indemnifying Party any notice on or prior to the second anniversary of the
Initials Closing Date of the assertion of any Claim or discovery of any facts
upon which an Indemnified Party expects in good faith to make a claim for
indemnification under this Agreement as contemplated by the first sentence of
Section 11.3, the limitations set forth in this Section 11.5 shall not be
applicable in respect of the matters set forth in such notice.
11.6 Exclusive Remedy. The provisions of Article XI of this Agreement
contain the exclusive remedies of the parties hereto and the Buyer Indemnified
Parties and Seller Indemnified Parties with respect to any breach or alleged
breach of any representation, warranty or covenant contained herein and with
respect to any claim otherwise arising from or relating to the transactions
contemplated by this Agreement; provided, that (a) nothing herein shall be
deemed to limit or restrict any party's rights or remedies based upon, or
arising out of or otherwise in respect of, fraud and (b) nothing herein shall be
deemed to limit or restrict any party's rights or remedies prior to the Initials
Closing Date (other than matters based upon, or arising out of or otherwise in
respect of the R&S Inventory or the R&S Purchase Commitments), including rights
or remedies based upon equitable principles (including specific performance and
injunctive relief) and, in that connection, each party against whom such
equitable remedies are being sought agrees that money damages would not be a
sufficient remedy in any such instance and that the party seeking such relief
shall be entitled, without the necessity of actual monetary loss being proved or
the posting of a bond, to such equitable relief.
ARTICLE XII
MISCELLANEOUS COVENANT S AND AGREEMENTS
12.1 Confidentiality; Disclosure.
(a) In connection with the transactions contemplated by this
Agreement and the other Transaction Documents, each of Takihyo and Seller, on
the one hand, and Buyer, on the other hand, or, in either case, their
Representatives (as hereinafter defined) have been or will be furnished with or
have access to certain Proprietary Information (as hereinafter defined) relating
to the other parties. Except as expressly provided herein, each party hereby
agrees with regard to the Proprietary Information of the other party, unless
otherwise expressly consented to in each case in advance in writing by Frank
Mori, with regard to Takihyo and Seller, and the Chairman of the Board, Chief
Operating Officer, President, Executive Vice President-Finance and
Administration, or Chief Financial Officer of Buyer, with regard to Buyer, (i)
to keep, and cause its Representatives to keep, all information concerning the
other parties hereto to the extent furnished by the other parties or their
respective Representatives, whether furnished before or after the date hereof,
whether oral or written and regardless of the manner in which it is furnished
("Proprietary Information"), confidential and not disclose or reveal any
Proprietary Information to any person other than its Representatives who are
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involved in the Anne Klein Transactions, and (ii) not use the Proprietary
Information for any purpose other than in connection with the transactions
contemplated by this Agreement or any of the other Transaction Documents. For
purposes hereof, Proprietary Information includes all analyses, compilations,
studies, summaries or extracts of any information or materials which contain,
are derived from or otherwise reflect Proprietary Information, whether prepared
by any party hereto or its Representatives. Each party shall be responsible for
any breach of this Section 12.1(a) by any of its Representatives. For purposes
hereof, the term "Proprietary Information" shall not include information which
(i) is presently available to the public, or hereafter shall become available to
the public other than as a result of a disclosure by a party or its
Representatives in breach of this Agreement, or (ii) becomes available to Seller
and Takihyo, on the one hand, or Buyer, on the other hand, from a source other
than the other parties or their respective Representatives; provided; that such
source does not provide such information in violation of a confidentiality
obligation with respect to such information, which confidentiality obligation is
known to the party receiving the information after making reasonable inquiry as
to the existence of such confidentiality obligation at the time such information
is disclosed.
(b) During the period from the date hereof until the closing of the
transactions contemplated by the Purchase Agreement, Buyer, on the one hand, and
Seller and Takihyo, on the other hand, will not, and will cause their respective
Representatives not to, without the prior written consent of the other party,
(i) make any release to the press or other public disclosure, or (ii) make any
statement with regard to this Agreement, the Transaction Documents or the Anne
Klein Transactions to any competitor, customer, client, licensee or supplier of
Seller or any of its affiliates, or any other person or entity, other than (A)
the parties' respective Representatives and (B) subject to Section 12.1(c)
below, any persons or entities to which any party has a contractual obligation
to disclose or provide notice in connection with obtaining third party consents
and approvals contemplated hereby; provided; that none of the parties shall hold
any other party responsible hereunder for any statement with respect to any of
the foregoing made prior to November 23, 1998 to Paul Guez, Herbert Guez, PG
Capital LLC, Schottenstein Stores Corporation or any of their affiliates or
representatives. Each party shall be responsible for any breach of the foregoing
by any of its Representatives. As used in this Section 12.1, the term
"Representatives" means, with respect to Buyer, its directors, officers,
financial advisors, counsel, independent public accountants, bankers,
financiers, and other representatives (including, without limitation, potential
bankers, financiers and other lenders in respect of the Purchaser's Financing
(as defined in the Purchase Agreement)), and, with respect to Seller, its
members, stockholders, directors, officers, financial advisors, counsel,
independent public accountants, bankers, financiers, controlling persons and
other representatives. Each party shall be responsible for any breach of the
foregoing by any of its Representatives.
(c) The restrictions in Section 12.1(b) shall not prohibit the
disclosure of any information by Buyer, on the one hand, and Seller and Takihyo,
on the other hand, in connection with obtaining the consents and approvals to be
obtained by Buyer or Seller and Takihyo, as the case may be, pursuant to the
Transaction Documents (including, without limitation, obtaining consents and
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approvals of the holders of Buyer's Senior Notes as provided in the Purchase
Agreement), or the disclosure of information required by law, rule or regulation
(including, without limitation, the rules and regulations of the Securities and
Exchange Commission and any stock exchange (including The NASDAQ National
Market) upon which any of the securities of Buyer or Seller are listed) subject
to compliance with the following provisions: (i) the disclosing party shall give
the other parties hereto written notice of such requirement as soon as possible
after becoming aware of such requirement; (ii) the disclosing party shall
provide the other parties hereto with a copy of any proposed disclosure a
reasonable period of time in advance of actual disclosure to any third party for
review and comment on such proposed disclosure, and the disclosing party will
use its commercially reasonable efforts to address any concerns raised by a
non-disclosing party consistent with the disclosing party's legal obligations
(including, without limitation, reporting and filing requirements under federal
and state securities laws); (iii) in case of disclosures being compelled by
legal process, prior to making such disclosure the disclosing party shall afford
the non-disclosing parties an opportunity to seek an appropriate protective
order with respect to such information, and the disclosing party shall provide
the non-disclosing parties with reasonable cooperation and assistance in
connection therewith; and (iv) with respect to any information which is
disclosed to a third party in accordance with these provisions, the disclosing
party, consistent with its legal obligations, shall use its best efforts to
obtain assurances from such third party that such information will be treated as
confidential by such third party. The parties shall issue a joint press release
upon the signing of the Transaction Documents, upon the consummation of the
closing of the transactions contemplated by the Purchase Agreement (or, if
applicable, upon termination of such agreement) and as they shall thereafter
otherwise mutually agree.
(d) Buyer may use any information, including Proprietary Information,
in Buyer's financial statements, including its pro forma financial statements,
required pursuant to its legal obligations, including, without limitation, under
applicable federal and state securities laws.
(e) Buyer, on the one hand, and Seller and Takihyo, on the other
hand, will not, and will cause their respective Representatives not to, without
the prior written consent of the other party, make any release to the press or
other public disclosure or make any statement to any other Person with regard to
the negotiation process with respect to this Agreement, the Transaction
Documents and the transactions contemplated hereby and thereby. In addition,
Buyer will not, and will cause its Representatives not to, without the prior
written consent of Mr. Frank Mori, make any disparaging or derogatory statement
to any other Person with regard to the conduct by Seller or Takihyo of their
respective businesses prior to Closing. Each party shall be responsible for any
breach of the foregoing by any of its Representatives. The restrictions in this
Section 12.1(e) shall not prohibit the disclosure of any information by Buyer,
on the one hand, and Seller and Takihyo, on the other hand, required by law,
rule or regulation (including, without limitation, the rules and regulations of
the Securities and Exchange Commission and any stock exchange (including The
NASDAQ National Market) upon which any of the securities of Buyer or Seller are
listed) subject to compliance with the following provisions: (A) the disclosing
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party shall give the other parties hereto written notice of such requirement as
soon as possible after becoming aware of such requirement; (B) the disclosing
party shall provide the other parties hereto with a copy of any proposed
disclosure a reasonable period of time in advance of actual disclosure to any
third party for review and comment on such proposed disclosure, and the
disclosing party will use its commercially reasonable efforts to address any
concerns raised by a non-disclosing party consistent with the disclosing party's
legal obligations (including, without limitation, reporting and filing
requirements under Federal and State securities laws); (C) in case of
disclosures being compelled by legal process, prior to making such disclosure
the disclosing party shall afford the non-disclosing parties an opportunity to
seek an appropriate protective order with respect to such information, and the
disclosing party shall provide the non-disclosing parties with reasonable
cooperation and assistance in connection therewith; and (D) with respect to any
information which is disclosed to a third party in accordance with these
provisions, the disclosing party, consistent with its legal obligations, shall
use its best efforts to obtain assurances from such third party that such
information will be treated as confidential by such third party.
(f) The provisions of clause (iii) of the second paragraph and the
fourth paragraph of the Confidentiality Agreement shall terminate at the closing
of the transactions contemplated by the Purchase Agreement and be of no further
force or effect. In addition, to the extent of an inconsistency between the
terms and conditions of Section 12.1 of this Agreement and that certain letter
agreement between Takihyo and Buyer dated November 23, 1998 (executed by Buyer
on November 24, 1998), the terms and provisions of Section 12.1 shall govern.
12.2 Notices. Any and all notices or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if given by personal delivery, by certified or
registered mail, postage prepaid, return receipt requested, or by telecopier
with verified answer back or by a recognized major overnight delivery service.
Any such notice shall be deemed given when personally delivered against written
receipt therefor, five (5) Business Days after posting, postage prepaid, in the
mails of the United States of America, upon receipt of verified answer back with
respect to transmission by telecopier (with the original sent postage prepaid by
first class mail) or, with respect to delivery by major overnight delivery
service, upon its receipt against written receipt therefor, at the following
addresses or to such other address or to such other addressee as any party may
from time to time specify by notice to the other party given as aforesaid:
If to Buyer:
Kasper A.S.L., Ltd.
77 Metro Way
Secaucus, NJ 07094
Attention: Chief Financial Officer
Facsimile No.: (201) 864-7768
25
<PAGE>
With a copy to:
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
Attention: Mark Abramowitz, Esq.
Facsimile No.: (212) 704-6288
If to Seller:
Anne Klein Company LLC
11 West 42nd Street
New York, New York 10036
Attention: Frank Mori
Facsimile No.: (212) 869-9535
and:
Takihyo Inc.
11 West 42nd Street
New York, New York 10036
Attention: Frank Mori
Facsimile No.: (212) 869-9535
With a copy to:
Paul, Hastings, Janofsky & Walker, LLP
399 Park Avenue
New York, New York 10022-4697
Attention: Leigh Ryan, Esq.
Facsimile No.: (212) 319-4090
12.3 Miscellaneous.
(a) Entire Agreement. This Agreement, the Schedules and Exhibits
hereto, together with the agreements, certificates and other documents referred
to herein, and that certain letter agreement between Takihyo and Buyer dated
November 23, 1998 (executed by Buyer on November 24, 1998), constitute the
entire agreement and set forth the entire understanding of the parties with
respect to the subject matter hereof, supersede all prior agreements, covenants,
arrangements, letters, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of either party,
relating to the subject matter hereof, and may not be modified or amended,
except by a written agreement specifically referring to this Agreement signed by
the parties hereto and any other party to be charged.
(b) No Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature. No failure on the part of any party to exercise,
26
<PAGE>
and no delay in exercising any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
(c) Assignment. Neither party may transfer or assign this Agreement
or its rights hereunder or delegate its performance hereunder without the prior
written consent of the other party, and any purported assignment without such
consent shall be void and of no effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
(d) Headings. The Section and paragraph headings contained herein are
for the purposes of convenience only and are not intended to define or limit the
contents of any Section or paragraph.
(e) Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, all legal and other costs and expenses
incurred in connection with this Agreement and the Transaction Agreements and
the transactions contemplated hereby or thereby shall be paid by the party
incurring such expenses, except as otherwise specifically provided herein or
therein.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed therein, without regard to that state's
conflicts of laws provisions that would defer to the substantive law of another
jurisdiction.
(h) No Third Party Beneficiaries. Nothing herein, express or implied,
is intended to or shall confer upon any person or entity including, without
limitation, any employee, contractor, vendor or distributor of the Business, or
any labor organization, other than the parties hereto the Buyer Indemnified
Parties and Seller Indemnified Parties and other than with respect to Takihyo
with respect to Section 12.1 and 12.3, any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
27
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duty executed as of the day and year first above written.
KASPER A.S.L., LTD.
By: /s/ Lester E. Schreiber
---------------------------------------------
Name: Lester E. Schreiber
Title: Chief Operating Officer
ANNE KLEIN COMPANY LLC,
a New York limited liability company,
by its Member Manager
TAKIHYO INC.
By: /s/ Frank R. Mori
--------------------------------------
Name: Frank R. Mori
As to Section 12.1
TAKIHYO INC.
By: /s/ Frank R. Mori
---------------------------------------------
Name: Frank R. Mori
Title: President
28
<PAGE>
EXHIBIT A
FORM OF BILL OF SALE
This Bill of Sale ("Bill of Sale") dated the ____ day of
_________, 1999, is made by Anne Klein Company LLC ("Seller"), a New York
limited liability company with its principal office at 11 West 42nd Street, New
York, NY 10036
WHEREAS, in connection with that certain Omnibus Agreement
(the "Omnibus Agreement") dated as of __________,
1999, between Kasper A.S.L., Ltd. ("Buyer"), a Delaware corporation with its
principal office at 77 Metro Way, Secaucus, NJ 07094 and Seller, which is
incorporated herein by reference, Seller desires to transfer to, and Buyer
desires to acquire, all Seller's right, title and interest in and to the [R&S
Inventory][Existing Continuing Initials Inventory] (all capitalized terms used
but not otherwise defined herein shall have the meaning assigned thereto in the
Omnibus Agreement);
NOW, THEREFORE, Seller, in exchange for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants and assigns, transfers and conveys to Buyer, its successors and
assigns, all Seller's right, title and interest in and to the [R&S Inventory]
[Existing Continuing Initials Inventory] free and clear of all liens, claims,
pledges, security interests and other encumbrances;
TO HAVE AND TO HOLD, all the [R&S Inventory] [Existing
Continuing Initials Inventory], hereby granted and assigned unto Buyer, its
successors, assigns and legal representatives, to and for its and their own use
and benefit forever.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE OMNIBUS
AGREEMENT, THE [R&S INVENTORY][EXISTING CONTINUING INITIALS INVENTORY][IS BEING
DELIVERED TO THE TRANSFEREE BY THE TRANSFEROR IN "AS IS" "WHERE IS" CONDITION
AND THE TRANSFEROR MAKES NO REPRESENTATIONS, WARRANTIES, GUARAN TEES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE [R&S
INVENTORY][EXISTING CONTINU-ING INITIALS INVENTORY]. THE TRANSFEREE WAIVES,
RELEASES AND RENOUNCES ALL WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
NONCONFORMITY OR DEFECT IN THE [R&S INVEN-TORY][EXISTING CONTINUING INITIALS
INVENTORY].
Seller will from time to time, at Buyer's request and
without further cost or expense to Buyer, execute and deliver to Buyer such
other instruments of transfer and take such other action as Buyer may reasonably
request so as to more effectively transfer the [R&S Inventory] [Existing
Continuing Initials Inventory] to Buyer.
<PAGE>
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT
CONSIDERATION OF PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS.
This Bill of Sale shall inure to the benefit of Buyer and
its successors, assigns and legal representatives, and shall be binding upon
Seller and its successors, assigns and legal representatives.
IN WITNESS WHEREOF, Seller has hereunto caused its name to
be signed to this Bill of Sale this ____ day of ____________, 1999.
ANNE KLEIN COMPANY LLC,
a New York limited liability company,
by its Member Manager
TAKIHYO INC.
By:
Name:
Title:
KASPER A.S.L., LTD.
By:
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement")
is entered into as of _______________, 1999, by and between Kasper A.S.L., Ltd.,
a Delaware corporation ("Buyer") and Anne Klein Company LLC, a New York limited
liability company ("Seller").
WHEREAS, in connection with that certain Omnibus Agreement
(the "Omnibus Agreement") dated as of _____________, 1999, between Buyer and
Seller which is incorporated herein by reference, Seller has agreed to assign to
Buyer, and Buyer has agreed to assume the [R&S Purchase Commitments][Initials
Commitments] (all capitalized terms used but not otherwise defined herein shall
have the meaning assigned thereto in the Omnibus Agreement);
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties to this Agreement hereby agree as
follows:
1. Assignment by Seller. Seller hereby transfers and
assigns to Buyer all of its rights, title and interest in and to, and all of its
obligations under the [R&S Purchase Commitments][Initials Commitments], listed
on Schedule 1.
2. Assumption by Buyer. Buyer hereby consents to the
transfer and assignment of the [R&S Purchase Commitments][Initials Commitments]
to Buyer and assumes and agrees to pay, perform and discharge when due and
payable, in accordance with their respective terms, all of the liabilities and
obligations of Seller from and after the [R&S Closing] [Initials Closing] AND
which arise after the [R&S Closing] [Initials Closing] pursuant to the [R&S
Purchase Commitments] [Initials Commitments].
3. Further Assurances. The parties shall, upon request of
each other from time to time, do and execute and deliver, or cause to be done,
executed or delivered, all such further acts, deeds, assignments, transfers and
conveyances as each of them may reasonably request to more completely consummate
and make effective the transactions contemplated hereby.
4. Entire Agreement. This Agreement, together with the
Omnibus Agreement and other agreements referenced therein, constitute the entire
and sole agreement and understanding between the parties hereto with respect to
the subject matter hereof and thereof supersede any prior or contemporaneous
understanding, agreement, representation or warranty, whether oral or written,
with respect to the subject matter hereof and thereof
5. Amendment and Waiver. No modifications or amendment of
any provision of this Agreement shall be effective unless approved in writing by
the parties to this Agreement. No party shall be deemed to have waived
<PAGE>
compliance by any other party with any provision of this Agreement unless such
waiver is in writing, and the failure of any party at any time to enforce any of
the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the rights of any party thereafter to
enforce such provisions in accordance with their terms. No waiver of any
provision of this Agreement shall be deemed to be a waiver of any other
provision of this Agreement. No waiver of any breach of any provision of this
Agreement shall be deemed the waiver of any subsequent breach thereof or of any
other provision of this Agreement.
6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOV-ERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK WITHOUT CONSIDER-ATION OF PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS.
7. Severability. Any provision of this Agreement which may
be determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement, and any such prohibition or unenforceability in
such jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
8. Counterparts. This Agreement may be executed in one or
more counterparts and in separate counterparts, each of which shall be deemed to
be an original copy of this Agreement, and all of which, when taken together,
shall be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ANNE KLEIN COMPANY LLC,
a New York limited liability company,
by its Member Manager
TAKIHYO INC.
By: ____________________________
Name:___________________________
Title:__________________________
KASPER A.S.L., LTD.
By: ____________________________
Name:___________________________
Title:__________________________
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-01-2000
<PERIOD-END> APR-03-1999
<CASH> 3,240
<SECURITIES> 0
<RECEIVABLES> 82,449
<ALLOWANCES> 18,639
<INVENTORY> 80,291
<CURRENT-ASSETS> 154,925
<PP&E> 22,848
<DEPRECIATION> 6,296
<TOTAL-ASSETS> 280,905
<CURRENT-LIABILITIES> 22,926
<BONDS> 0
0
0
<COMMON> 68
<OTHER-SE> 129,075
<TOTAL-LIABILITY-AND-EQUITY> 280,905
<SALES> 98,286
<TOTAL-REVENUES> 98,286
<CGS> 66,288
<TOTAL-COSTS> 17,997
<OTHER-EXPENSES> 826
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,302
<INCOME-PRETAX> 8,873
<INCOME-TAX> 3,726
<INCOME-CONTINUING> 5,147
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,147
<EPS-BASIC> 0.76
<EPS-DILUTED> 0.76
</TABLE>
