FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [FEE REQUIRED]
For the fiscal year ended DECEMBER 31, 1997 OR
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[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from NOT APPLICABLE to
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Commission file number 0-17840
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NEW HORIZONS WORLDWIDE, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 2-2941704
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(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 CAMPUS DRIVE, MORGANVILLE, NEW JERSEY 07751
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (732) 536-8501
Securities registered pursuant to Section 12(b) of the Act:
Title of each Class Name of each exchange on which registered
NOT APPLICABLE NOT APPLICABLE
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Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
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Title of Class
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the Common Stock held by non-affiliates of the
Registrant as of March 23, 1998 was approximately $59,856,480, computed on the
basis of the last reported sales price per share ($15.00) of such stock on the
NASDAQ National Market System.
The number of shares of the Registrant's Common Stock outstanding as of March
27, 1998 was 7,177,331.
DOCUMENTS OR PARTS THEREOF INCORPORATED BY REFERENCE
PART OF FORM 10-K DOCUMENTS INCORPORATED
- --------------------------------- BY REFERENCE
Part III (Items 10, 11, 12 and 13) --------------------------------------
Portions of the Registrant's definitive
Proxy Statement to be used in connection
with its Annual Meeting of Stockholders
to be held on May 5, 1998
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NEW HORIZONS WORLDWIDE, INC.
INDEX TO ANNUAL REPORT
ON FORM 10K
PART I
Item 1. Business.............................................................1
General..............................................................1
Information Technology Education and Training Market.................2
New Horizons Business Model..........................................2
Company-owned Training Centers.....................................3
Franchising........................................................3
Customers............................................................5
Sales and Marketing..................................................5
Training Authorizations..............................................5
Competition..........................................................5
Information about Forward Looking Statements.........................6
Regulations..........................................................7
Insurance............................................................7
Trademarks...........................................................7
Employees............................................................7
Item 2. Properties...........................................................7
Item 3. Legal Proceedings....................................................8
Item 4. Submission of Matters to a Vote of Security Holders..................8
PART II
Item 5. Market for Registrant's Common Equity
and Related Shareholder Matters....................................8
Item 6. Selected Consolidated Financial Data.................................9
Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations....................10
Item 8. Financial Statements and Supplementary Data.........................16
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure............................16
PART III
Item 10. Directors and Executive Officers of the Registrant.................17
Item 11. Executive Compensation.............................................18
Item 12. Security Ownership of Certain Beneficial Owners
and Management....................................................18
Item 13. Certain Relationships and Related Transactions.....................18
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports................19
SIGNATURES..................................................................20
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PART I
ITEM 1. BUSINESS
This Annual Report on Form 10-K contains forward-looking statements which
involve risks and uncertainties. The Company's actual results may differ
significantly from the results discussed in the forward-looking statements.
Factors that may cause such a difference include, but are not limited to, those
discussed throughout this document and under the caption "Information About
Forward Looking Statements."
New Horizons Worldwide, Inc., (the "Company" or "New Horizons") formerly Handex
Corporation, through various subsidiaries, both owns and franchises computer
training centers. Systemwide revenues include revenues for all centers, both
owned and franchised. The Company sold its environmental business segment and
changed its name to New Horizons in late 1996, in order to concentrate its
resources on the technology training market. The Company now trades on NASDAQ
under the symbol "NEWH".
GENERAL
New Horizons' 1997 systemwide revenues of $267,377,000 makes it the largest
independent provider in the fragmented PC software applications and technical
certification training industry. Through various subsidiaries, the Company both
owns and franchises computer training centers. Through these training centers
the Company offers comprehensive instruction in the use of personal computers,
PC software applications and technical certification courses. The goal of the
training is to deliver to the student information and skills which have
immediate, practical value in the workplace.
The New Horizons worldwide network delivered over 2 million student-days of
technology training in 1997, generating system-wide revenues, which include both
the results of company-owned and franchised operations, of $267,377,000, up
39.2% from $192,134,000 in 1996. The network has over 950 classrooms, 1,400
instructors and 1,150 account executives.
New Horizons specializes in instructor-led training which is the industry's
dominant delivery method for information technology training. The Company has
become a leader in the industry by developing the processes for delivering
quality training for the largest technology training segments: PC software
applications and technical certification training. The network's learning
centers offer a broad range of courses for several of the major software
vendors, including Microsoft, Novell, Lotus, Adobe, Aldus, Apple Computer,
Symantec, Sun Microsystems, and Unix. New Horizons has the largest network of
Microsoft Authorized Technical Education Centers and Novell Authorized Education
Centers in the world. Additionally, with certification testing becoming
increasingly important, New Horizons also has established the largest number of
Authorized Prometric Testing Centers in the world. Classes can be held at New
Horizons locations or on-site at the client's facility. Curriculum can be
tailored to the client's specific needs. The Company can also provide training
and courseware for customers' proprietary software. Additionally, using its
courseware as the source material, the Company has entered into an arrangement
with a company to develop its own line of computer based products, entitled
Masterware, which became available to franchisees for sale in the third quarter
of 1997.
New Horizons owns and operates eight computer training facilities located in
Santa Ana, Burbank, Los Angeles, and Irvine, California; Chicago, Illinois;
Cleveland, Ohio; and two in New York City, New York. The Santa Ana location was
acquired as part of the original purchase of New Horizons in 1994. The remaining
California locations are part of a strategy to expand in the large southern
California technology training market, while the Chicago and Cleveland locations
and the initial New York location were acquired from franchisees as part of the
Company's strategy to operate company-owned training centers in select major
metropolitan markets within the United States. A second New York training center
opened in the first quarter of 1997.
As of December 31, 1997, the Company's franchisees operated 175 locations in the
United States and Canada and in 21 other countries around the world. An
additional 16 franchises have been sold and are scheduled for future openings.
Of the 183 learning centers operating at the end of 1997, 122 were operating in
the United States and Canada and 61 were operating abroad.
The Company was incorporated in Delaware on December 15, 1988, and its principal
executive offices are located at 500 Campus Drive, Morganville, New Jersey,
07751. The Company's principal operating offices are located at 1231 East Dyer
Road, Suite 140, Santa Ana, California 92705. The Company maintains a website at
http://www.newhorizons.com
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THE INFORMATION TECHNOLOGY EDUCATION AND TRAINING MARKET
The rapidly growing role of information technology in business organizations and
the emergence of the Internet are creating significant and increasing demand for
information technology training. An International Data Corporation ("IDC") study
estimated that in 1996 the worldwide market for information technology education
and training was about $16.4 billion and is expected to grow at a pace of 11.2%
per year to over $27.9 billion in the year 2001. The study indicated that nearly
one-fifth of the top U.S. IT executives rated the lack of skilled personnel as
the most serious constraint to the growth of their businesses in 1997. A survey
published in 1997 by Information Technology Association of America (ITTA) stated
that the number of unfilled positions for IT employees at large and midsized
U.S. companies is approximately 190,000.
The growing need for technology training is driven by several developments
including: (i) increased use of computers in the workplace requiring employees
to acquire and apply information technology skills; (ii) rapid and complex
technological changes in operating systems, new software development and
technical training; (iii) continuing emphasis by industry on productivity,
increasing the number of functions being automated throughout organizations;
(iv) greater focus by organizations on core competencies with a shifting
emphasis to outsourcing of non-core activities; (v) corporate downsizing
requiring remaining personnel to develop a greater variety of skills; and (vi)
development of the Internet. In its survey, the ITTA pronounced that education
will be a key facet of any solution to the skills problem.
Although a significant portion of technology training is provided by in-house
training departments, IDC, in its study, identified a decided shift towards
outsourcing to external training professionals. This outsourcing is motivated by
several factors, including: (i) the lack of internal trainers experienced in the
latest software; (ii) the cost of maintaining an in-house staff of trainers; and
(iii) the cost of developing and maintaining internal courseware.
Organizations are searching out and selecting outside technology training
services that can provide the following: (i) cost effective delivery of high
quality instruction; (ii) qualified, technically expert instructors; (iii)
flexibility to deliver a consistent training product at geographically dispersed
facilities; (iv) ability to tailor the training product to specific customers'
needs; (v) definitive, current courseware; (vi) testing and certification of
technical competency; (vii) effective training methods delivering knowledge and
skills with immediate practical value in the workplace; (viii) a depth and
breadth of curriculum; and (ix) flexible and convenient scheduling of classes.
Instructor-led classroom training is the dominant delivery method for technology
training. IDC projects that instructor-led training will continue to dominate
the market because trainees value the personalized attention, interfacing and
problem solving with classmates and instructors, and the insulation classroom
training provides from workplace interruptions. While instructor-led training
will continue to be the leading delivery method in the market, the role of both
multimedia and computer based training (online or Web training) is gaining
greater acceptance. IDC estimates that technology training in the multimedia and
computer based training formats had 15.8% of the U.S. IT training and education
revenues in 1996 and expects that share to increase to 32.2% by 2001. That
represents a growth rate of 29.9%, while instructor-led training is expected to
grow at a rate of 7.3% over the same period. However, the study shows that the
shift toward technology training will happen slower than originally expected by
IDC. Last year's IDC study projected the instructor-led training share in the
year 2000 to be 60%, while the current study projects a 63.1% market share.
THE NEW HORIZONS BUSINESS MODEL
New Horizons' company-owned and franchised operations both provide an
instructor-led training delivery system to customers that is executed by
certified employee instructors in fully equipped classrooms in New Horizons
facilities. Approximately 16% of classes are given on-site at the customer's
location. New Horizons often supplies the computer hardware for these on-site
classes. The Company sells its services primarily to business and government as
opposed to individuals.
Curriculum is centered on software applications (approximately 68% of the
courses) and technical certification programs (approximately 32%). Classes are
concise, generally ranging from one to five days, and are designed to be
intensive skill building experiences. The Company offers a broad array of
information technology courses covering the most popular software applications
and technical certification programs. The Company also provides customized
training for customers' proprietary software applications. The Company believes
it offers more classes more often than any other company in the industry.
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In addition to certified instructors and broad curriculum, the New Horizons
business model is designed to provide its customers significant training value
by featuring: (i) guaranteed training through the Company's free six-month
repeat privileges; (ii) skills assessment on subjects and skills for both
standard or proprietary software; (iii) professional certification training;
(iv) the largest network of authorized training centers in the industry ensuring
quality and consistency; (v) free 24 hour-a- day, 7 day-a-week help desk service
for a full sixty day period after a class has been completed; (vi) on-site
training at customer's facilities; (vii) customized courseware from a library of
over 1000 titles in ten languages; (viii) club memberships providing a series of
classes for one platform at one low price; (ix) flexible scheduling including
evening and weekend classes; and (x) a Major Accounts Program which coordinates
the national and or international delivery of training for clients with training
requirements in multiple locations.
The Company has historically grown through the sale of franchises, the opening
of new company-owned facilities, and the buy-back of franchises in major
metropolitan markets. The Company believes a mix of franchised and company-owned
centers will enable it to combine the accelerated expansion opportunities
provided by franchising while maintaining ownership of a significant number of
training centers. The Company plans to continue to grow through the (i)
improvement of revenues and profits at both current company-owned and franchised
operating locations; (ii) the sale of additional franchises; (iii) the selective
buyback of existing franchises in the United States which have demonstrated the
ability to achieve exceptional profitability while increasing market share, and
(iv) the potential acquisition of companies in similar or complementary
businesses.
COMPANY-OWNED TRAINING CENTERS
At the end of 1997, the Company owned and operated eight computer training
facilities located in Burbank, Irvine, Los Angeles and Santa Ana, California;
Chicago, Illinois; Cleveland, Ohio; and two in New York City, New York. The
Santa Ana location was acquired as part of the original purchase of New Horizons
in 1994. The remaining California locations were opened between October 1994 and
April 1996 as part of a strategy to expand in the Southern California
information technology training market. The Chicago and Cleveland locations and
the initial New York location were acquired from franchisees as part of the
Company's strategy to operate company-owned training centers in select major
metropolitan markets within the United States. The Company opened a second New
York City training center in the first quarter of 1997. In 1997, the
company-owned centers generated over $38,692,000 in revenues.
FRANCHISING
At the end of 1997, the Company supported a worldwide network of independent
franchises which provide information technology training at 175 locations in 23
countries. There are an additional 16 franchised locations which have been sold
and which are scheduled to open at various times during 1998. The franchisee is
given a non-exclusive license and franchise to participate in and use the
business model and sales system developed and refined by the Company. The
Company initially offered franchises for sale in 1991 and sold its first
franchise in 1992. The Company had 106 franchised locations operating at the end
of 1995; 147 at the end of 1996, and 175 at the end of 1997, of which 114 were
in the United States and Canada and 61 were abroad.
The Company offers franchises for the operation of computer-related learning
centers to independent operators throughout the world. A franchisee in the
United States and Canada is charged an initial franchise fee and ongoing monthly
fees which become effective a specified period of time after the center begins
operation. The initial franchise fee is based on the size of the territory
("territory") granted as defined in the Franchise Agreement. In the United
States and Canada, the size of a territory is measured by the number of personal
computers ("PC's") in the territory. The initial franchise fee for a start-up
center for a Type 1 territory (150,000 or more PC's) is $60,000; for a Type 2
territory (75,000 to 149,999 PC's) is $40,000; and a Type 3 territory (50,000 to
75,000 PC's) is $20,000. Entrepreneurs converting an existing training center to
a New Horizons center pay an initial franchise fee for a Type 1 territory of
$50,000; for a Type 2 territory $30,000; and for a Type 3 territory $15,000.
Based on information furnished by IDC concerning the number of PC's in various
geographic areas, as of December 31, 1997, the Company has identified 28 Type 1
territories, 34 Type 2 territories and 17 Type 3 territories as the remaining
territories currently available for the sale of franchises in the United States
and Canada. In addition to those currently served by the Company, over 200
additional international markets which may support a training center have been
identified.
The initial franchise fee is payable upon execution of the Franchise Agreement
and is not refundable under any circumstances. The territory is a "limited
exclusive" territory in that New Horizons agrees not to own or franchise any
other New Horizons business provided the franchisee operates in compliance with
the terms of its franchise agreement. The geographic boundaries of a territory
are typically determined by United States Postal Service zip codes. Unless the
Franchise Agreement terminates or is amended by mutual agreement, a territory
will not be altered. Franchises are expected to market their business to
customers located within the defined territory and not to customers within
territories
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of other New Horizons franchises or affiliates. Franchisees have six months from
the date of the execution of the Franchise Agreement to open a center.
Initial franchisee fees for international franchises are market/country
specific. For international franchising activities, the Company has historically
entered into master franchise agreements providing franchisees with the right to
award sub-franchises to other parties within a particular country. Under the
terms of these master franchise agreements, the franchisee commits to open or
cause to be opened a specified number of locations within a specified timeframe.
The Company receives an initial franchise fee and shares with the master
franchisee in the proceeds of subsequent sales of individual franchises, and
also receives a percentage of the royalties received by the master franchisee.
In 1997 the Company entered into master franchise agreements for the development
of Germany and Taiwan. The Company has also entered into individual franchise
agreements with foreign franchisees similar to those entered into in its
domestic franchising activities. Approximately 10.6% of the Company's systemwide
revenues were generated by international locations in 1997.
The offer and sale of franchises are subject to regulation by the United States
Federal Trade Commission and certain foreign countries. There also exist
numerous state laws that regulate the offer and sale of franchises and business
opportunities, as well as the ongoing relationship between franchisors and
franchisees, including the termination, transfer and renewal of franchise
rights. The failure to comply with these laws could adversely affect the
Company's operations..
New Horizons estimates the initial investment required to acquire and start a
franchise operation, including the initial franchise fee, ranges from
approximately $200,000 to $390,000.
In addition to the initial franchise fee, franchisees pay the following fees to
New Horizons: (i) a monthly continuing royalty fee, consisting of the greater of
3% to 6% of monthly gross revenues or a minimum flat fee of $1,500 for a Type 1
territory or $1,000 for a Type 2 and Type 3 territory; (ii) a monthly marketing
and advertising fee of 1% of gross revenues; and (iii) a course materials and
proprietary computer based training products surcharge of 9% of the gross
revenues from course materials and proprietary computer based training products
sold to third parties. Each franchisee also pays a $50 per month maintenance fee
for customized software developed and maintained by New Horizons. The 6% royalty
fee rate was effective for franchises sold during September 1996 or later;
sixteen franchises pay a 3% royalty fee and the remainder pay a 5% royalty fee.
Monthly royalty fees begin the fourth month after the effective date of a new
franchise and begin the sixth month after the effective date of a conversion
franchise.
In return for the initial franchise fee and the other monthly fees, the Company
provides the franchisee with the following services, products and managerial
support: (i) two weeks of initial franchise training at the Company's operating
headquarters in Santa Ana, California, and one week of field training at the
franchisee's location; (ii) franchise and sales system information contained in
the Company's Confidential Operations Manual and other training manuals; (iii)
ongoing operating support via on-site visits from Regional Franchise Support
Managers, and access to troubleshooting and business planning assistance; (iv)
current applications courseware at printing cost only (over 1000 titles in ten
languages); (v) access to a major accounts division which coordinates a
national/international referral system and delivery network of training for
major clients which have training requirements in multiple locations; (vi) site
selection assistance; (viii) periodic regional and international meetings and
conferences; and (ix) advisory councils and monthly communications.
The Franchise Agreement runs for an initial term of ten years, and is renewable
for additional five-year terms. The franchise is exclusive within the specific
defined territory and is subject to a number of limitations and conditions.
These limitations and conditions include, but are not limited to: (i) staffing
requirements, including a General Manager plus a minimum number of account
executives based on the territory type; (ii) a minimum number of classrooms
depending on the territory type; (iii) full-time and continuous operations; (iv)
a pre-defined minimum required curriculum; (v) minimum computer equipment and
system requirements; (vi) signage and display material requirements; (vii)
minimum insurance requirements; and (vii) record keeping requirements.
The agreement also contains non-competition restrictions which bar: (i)
competing with New Horizons during the term of the franchise agreement and for
one year after termination of the franchise, within a 25 mile radius of any New
Horizons center; (ii) diverting or attempting to divert any customer or business
of the franchise business to any competitor; (iii) performing any act that is
injurious or prejudicial to the goodwill associated with the New Horizons
service marks or operating system; and (iv) soliciting any person who is at that
time employed by the franchisor or any of its affiliated corporations to leave
his or her employment. In addition, there are certain restrictions on the
franchisees' rights to transfer the franchise license. New Horizons also
maintains a "right of first refusal" if a transfer effects a change of control.
The agreement also contains default and termination remedies.
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On February 28, 1997 the Company received cash consideration of $2,600,000 in
return for releasing the franchise obligations of an owner of four New Horizons
training centers in the State of New York. The Company is aggressively
attempting to re-franchise the territories that became available as a result of
this transaction and successfully resold one of the territories in the second
quarter of 1997.
CUSTOMERS
Customers for the training provided at New Horizons company-owned and franchised
training centers are predominantly employer-sponsored individuals from a wide
range of public and private corporations, service organizations, government
agencies and municipalities. Little, if any, of the Company's revenues are
generated from Title IV entitlement programs.
No single customer accounted for more than 10% of New Horizons revenues in 1997.
The New Horizons system delivered over 2,000,000 student-days of technology
training in 1997.
SALES AND MARKETING
New Horizons markets its services primarily through account executives who
utilize telesales to target and contact potential customers. The New Horizons
sales system is organized and disciplined. After undergoing a formal initial
training program, account executives are expected to generate their own database
of customers through telephone sales, make a minimum number of calls per day,
and invoice and collect a minimum amount of revenue each month. These minimums
escalate over the first eight months an account executive is selling and are
designed to move the account executive from being compensated with a
non-recoverable draw against commission to a full commission compensation
program. Account executives target sales areas are local and regional; sales
opportunities which involve national and international accounts and involve
delivery of training at multiple locations are turned over the Company's major
accounts division.
In 1995, the Company established a Major Accounts Program designed to market
computer training services to large organizations which have facilities and
training needs throughout the world. This program provides New Horizons'
national and international customers with a single point of contact to the
entire New Horizons network of training and support services. During 1997, New
Horizons competed for and won national and international contracts with AT&T
Global Systems, Hertz, Bay Networks, and Louisiana Pacific, among others.
The Company maintains a web site for marketing its products over the Internet
(http://www.newhorizons.com). The Company believes that the Internet will become
an increasingly important tool in its marketing program.
TRAINING AUTHORIZATIONS
New Horizons is authorized to provide certified training by more than 30
software publishers, including Microsoft, Novell, Apple and Sun Microsystems.
Many of the industry's major software vendors do not offer training, but support
their products through independent training companies using a system of
standards and performance criteria. In support of these vendors, the Company has
80 Microsoft (ATEC), 78 Novell (NAEC), and 14 Lotus (LAEC) authorized centers
worldwide. The authorization agreements are typically annual in length and are
renewable at the option of the publishers. While New Horizons believes that its
relationships with software publishers are good, the loss of any one of these
agreements could have a material adverse impact on its business. Additionally,
with certification testing becoming increasingly important, New Horizons has
grown its number of Authorized Prometric Testing Centers to 78.
COMPETITION
The information technology training market is highly competitive, highly
fragmented, has low barriers to entry and has no single competitor which
accounts for a dominant share of the market. The Company's competitors are
primarily in-house training departments and independent education and training
organizations. Computer retailers, computer resellers, and others also compete
with the Company. Periodically, some of these competitors offer instruction and
course titles similar to those offered by New Horizons at advantageous pricing.
In addition, some of these competitors may have greater financial strength and
resources than New Horizons.
New Horizons believes that competition in the industry is based on a combination
of pricing, quality of training and flexibility and convenience of service.
The Company recognizes that the emergence of desktop multimedia and computer
based training, as well as distance learning and on-line training on the
Internet, are important and growing competitive developments in the industry.
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IN-HOUSE TRAINING DEPARTMENTS:
In-house training departments provide companies with the highest degree of
control over the delivery and content of information technology training,
allowing for customized instruction tailored to specific needs. However,
according to IDC, the demand for outsourced training is expected to grow as more
companies switch to outside training organizations. By outsourcing, training
companies can choose to spend based on real-time training needs while
alleviating the overhead costs for in-house instructors' salaries and benefits.
INDEPENDENT EDUCATION AND TRAINING ORGANIZATIONS:
Although the majority of independent training organizations are relatively small
and focus on local or regional markets, the Company competes directly on a
national level with several firms providing similar curriculum. Executrain,
Productivity Point, Global Knowledge Network, and Catapult target the same
customer base and operate in some of the same markets as New Horizons. The
Company believes that the combination of its market presence, the depth and
breadth of its course offerings, its flexible customer service approach, its
centralized control of delivery to national customers, its status as the world's
largest network of Microsoft Authorized Technical Education Centers and Novell
Authorized Education Centers, and its organized and disciplined sales system
distinguishes it from these competitors.
The Company also competes in certain locations with computer resellers like
Inacom, Vanstar, and IKON, as well as computer retailers such as CompUSA.
MULTIMEDIA, COMPUTER BASED TRAINING, DISTANCE LEARNING, AND INTERNET TRAINING:
Instructor-led training has historically been the dominant delivery method for
information technology training. Multimedia, CBT, distance learning and Internet
training have been small but growing delivery methods. According to IDC, these
training delivery methods are expected to grow at a faster rate than
instructor-led training through the year 2001. The Company recognizes that its
future success depends on, among other factors, the market's continued
acceptance of instructor-led training as a delivery method for information
technology training, the Company's ability to continue to market competitive
instructor-led course offerings and the Company's ability to successfully
capitalize on the potential of multimedia, CBT, distance learning, and Internet
delivery methods. Using its courseware as the source material, the Company has
entered into an arrangement with a company to develop its own line of computer
based products, entitled Masterware, which became available to franchisees for
sale in the third quarter of 1997. As of December 31, 1997, there were 15
Masterware titles available for sale.
Information technology training can be broken into three segments: Segment 1,
which includes the most sophisticated levels of training for programmers and
software developers; Segment 2, which includes certification for engineers
(Microsoft, Novell); and Segment 3, which includes the end-users of standard
application software. The Company competes in Segments 2 and 3, with an
estimated 32% of revenues from Segment 2 and 68% from Segment 3.
The Company competes with Catapult, Executrain, IKON, and Productivity Point in
Segments 2 and 3. The Company competes marginally with Learning Tree and Global
Knowledge Network in Segment 2. Currently, the Company does no training of
programmers and software developers.
INFORMATION ABOUT FORWARD LOOKING STATEMENTS
The statements made in this Annual Report on Form 10-K that are not historical
facts are forward looking statements. Such statements are based on current
expectations but involve risks, uncertainties, and other factors which may cause
actual results to differ materially from those contemplated by such forward
looking statements. Important factors which may result in variations from
results contemplated by such forward looking statements include, but are by no
means limited to: (i) the Company's ability to respond effectively to potential
changes in the manner in which computer training is delivered, including the
increasing acceptance of technology based training which could have more
favorable economics with respect to timing and delivery costs and the emergence
of "just in time" interactive training; (ii) the Company's ability to attract
and retain qualified instructors; (iii) the rate at which new software
applications are introduced by manufacturers and the Company's ability to keep
up with new applications and enhancements to existing applications; (iv) the
level of expenditures devoted to upgrading information systems and computer
software by customers (v) the Company's ability to compete effectively with low
cost training providers who may not be authorized by software manufacturers; and
(vi) the Company's ability to manage the growth of its business.
The Company's strategy focuses on enhancing revenues and profits at current
locations, and also includes the possible opening of new company-owned
locations, the sale of additional franchises, the selective acquisition of
existing
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franchises in the United States which have demonstrated the ability to achieve
exceptional profitability while increasing market share, and the acquisition of
companies in similar or complementary businesses. The Company's growth strategy
is premised on a number of assumptions concerning trends in the information
technology training industry. These include the continuation of growth in the
market for information technology training and the trend toward outsourcing. To
the extent that the Company's assumptions with respect to any of these matters
are inaccurate, its results of operations and financial condition could be
adversely effected.
REGULATIONS
The offer and sale of franchises and business opportunities are subject to
regulation by the United States Federal Trade Commission, as well as many states
and foreign jurisdictions. There also exist numerous laws that regulate the
ongoing relationship between franchisors and franchisees, including the
termination, transfer and renewal of franchise rights. The failure to comply
with any such laws could have an adverse effect on the Company.
INSURANCE
The Company maintains liability insurance in amounts it believes to be adequate
based on the nature of its business. While the Company believes that it operates
its business safely and prudently, there can be no assurance that liabilities
incurred with respect to a particular claim will be covered by insurance or, if
covered, that the dollar amount of such liabilities will not exceed coverage
limits.
TRADEMARKS
The Company has issued trademark registrations and pending trademark
applications for the word mark "NEW HORIZONS" and for other trademarks
incorporating the words "NEW HORIZONS." The Company believes that the New
Horizons name and trademarks are important to its business. The Company is not
aware of any pending or threatened claims of infringement or challenges to the
Company's right to use the New Horizons name and trademarks in its business,
except in Canada. However, the Company has been advised that it cannot register
the word mark "NEW HORIZONS" in certain foreign countries and that it cannot
register or use any of the New Horizons trademarks in one foreign country. The
Company believes that neither the pending claim nor the inability to register
certain of its trademarks in certain foreign countries will have a material
adverse effect on its financial condition or results of operations.
EMPLOYEES
As of March 1, 1998, the Company employed a total of 496 individuals in its
corporate operations and company-owned facilities. Of these employees, 134 are
instructors, 112 are account executives, and 250 are administrative and
executive personnel. New Horizons also utilizes the services of outside contract
instructors to teach some of its curriculum, primarily technical certification
programs which require instructors who are certified by Microsoft, Novell and
Lotus.
None of New Horizons' employees is represented by a labor organization. New
Horizons considers relations with its employees and outside contract instructors
to be satisfactory.
ITEM 2. PROPERTIES
The Company's corporate headquarters occupy 1,500 square feet in a facility in
Morganville, New Jersey. The space is being sublet under a short-term agreement
with the facility's primary tenant.
The offices for the Company's franchising business and company-owned training
centers are located in Santa Ana and Irvine, California, pursuant to leases
which expire in 2002 and 2001, respectively.
As of December 31, 1997, New Horizons operated training centers at six other
leased facilities in California, Illinois, Ohio and New York with leases that
expire from 1999 to 2008.
The Company believes that its facilities are well maintained and are adequate to
meet current requirements and that suitable additional or substitute space will
be available as needed to accommodate any expansion of operations and for
additional offices if necessary.
7
<PAGE>
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in several lawsuits incidental to the ordinary conduct
of its business. Under the terms of the sale of the Company's environmental
business, the Company is required to indemnify the purchaser against liabilities
arising out of pending litigation. The Company does not believe that the outcome
of any or all these claims will have a material adverse effect upon its business
or financial condition or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS
The Common stock is traded on the NASDAQ National Market System under the symbol
NEWH. The following table sets forth the range of high and low bid quotations
per share of Common stock from January 1, 1996 through December 31, 1997, as
reported by the NASDAQ system.
1997 HIGH LOW
- ---- ------ ------
1st Quarter (January 1 - March 31) 13 7/8 9
2nd Quarter (April 1 - June 30) 12 1/4 8 1/8
3rd Quarter (July 1 - September 30) 13 3/4 10 1/4
4th Quarter (October 1 - December 31) 16 1/8 12 5/8
1996 HIGH LOW
- ---- ------ -----
1st Quarter (December 31 - March 30) 5 3/4 4 7/8
2nd Quarter (March 31 - June 29) 11 1/2 5 1/8
3rd Quarter (June 30 - September 28) 11 3/8 6 3/4
4th Quarter (September 29 - December 28) 14 5/8 9 3/4
As of March 24, 1998, the Company's Common stock was held by 197 holders of
record. The Company has never paid cash dividends on its Common stock and has no
present intention to pay cash dividends in the foreseeable future. The Company
currently intends to retain any future earnings to finance the growth of the
Company.
8
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
Summary Consolidated Financial Data (in thousands, except per share)
SELECTED CONSOLIDATED 1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Total revenues $ 52,633 $ 41,269 $ 23,733 $ 5,989 $ --
Cost of revenues 26,814 20,599 13,164 3,269 --
Selling, general and administrative expenses 23,368 19,063 11,757 2,813 --
-------- -------- -------- -------- --------
Operating income 2,451 1,607 (1,188) (93) --
Interest income (expense) net 832 (140) 131 43 --
Gain from release of certain
franchise obligations 2,600 -- -- -- --
-------- -------- --------- -------- --------
Income (loss) from continuing operation
before income taxes 5,883 1,467 (1,057) (50) --
Provision (benefit) for income taxes 2,269 669 (440) (35) --
-------- -------- -------- -------- --------
Income (loss) from continuing operations 3,614 798 (617) (15) --
Income (loss) from discontinued operations
net of applicable income taxes of $0, $85,
$510, $1569, and $821, for 1997, 1996, 1995,
1994, and 1993, respectively 349 (130) 424 2,346 1,374
Loss on disposal of discontinued operations -- (7,303) -- -- --
-------- -------- -------- -------- --------
Income (loss) on discontinued operations 349 (7,433) 424 2,346 1,374
-------- --------- -------- -------- --------
Net income (loss) $ 3,963 $ (6,635) $ (193) $ 2,331 $ 1,374
======== ========= ========= ======== ========
BASIC EARNINGS PER SHARE
Income (loss) per share from continuing
operations $ 0.51 $ 0.12 $ (0.09) $ 0.00 $ 0.00
Income (loss) per share from discontinued
operations 0.05 (1.08) 0.06 0.34 0.20
---------- --------- -------- -------- --------
Net income (loss) per share $ 0.56 $ (0.96) $ (0.03) $ 0.34 $ 0.20
========= ======== ======== ======= =======
DILUTED EARNINGS PER SHARE
Income (loss) per share from continuing
operations $ 0.50 $ 0.11 $ (0.09) $ 0.00 $ 0.00
Income (loss) per share from discontinued
operations 0.05 (1.06) 0.06 0.34 0.20
---------- --------- -------- -------- --------
Net income (loss) per share $ 0.55 $ (0.95) $ (0.03) $ 0.34 $ 0.20
========= ======== ======== ======= =======
</TABLE>
<TABLE>
<CAPTION>
SELECTED CONSOLIDATED BALANCE SHEET DATA
DECEMBER 31, DECEMBER 28, DECEMBER 30, DECEMBER 31, JANUARY 1,
SELECTED CONSOLIDATED BALANCE SHEET 1997 1996 1995 1994 1994
DATA: ------------ ------------ ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Working capital $27,002 $23,066 $28,898 $30,802 $38,194
Total assets 66,571 60,472 56,477 53,651 52,393
Long term obligations
less current portion 1,517 2,330 650 464 --
Total stockholders' equity 49,056 43,757 49,428 49,637 47,060
</TABLE>
(1) Certain reclassifications were made in 1996, 1995, 1994, and 1993 to
conform with the presentation in 1997.
(2) The operating results of New Horizons are included in 1997, 1996 and 1995
for the entire year and for the period from August 15, 1994 through
December 31, 1994 for 1994. The Company acquired certain assets of a
computer training school and all the issued and outstanding shares of stock
of a computer training franchising company on August 15, 1994. The Company
entered the technology training and education market with these
acquisitions.
(3) As of December 31, 1997 the Company adopted Statement of Financial
Accounting Standards No. 128, Earnings Per Share (EPS), ("SFAS No. 128").
SFAS No. 128 requires the Company to report Basic EPS, as defined therein,
which assumes no dilution from outstanding options, and Diluted EPS, as
defined therein, which assumes dilution from the outstanding options.
Earnings per share amounts for all periods presented have been restated to
conform to the requirements of SFAS No. 128.
9
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the Consolidated
Financial Statements and related notes and "SELECTED CONSOLIDATED FINANCIAL
DATA" included elsewhere in this report.
GENERAL
The Company operates computer training centers in the United States and
franchises computer training centers in the United States and abroad. Prior to
1997 the Company also operated an environmental remediation business. As a
result of the completion of the sale of Handex Environmental, Inc. to ECB, Inc.
in December 1996, the results of operations for the Company's environmental
business segment have been classified as discontinued operations for all periods
presented in the accompanying consolidated financial statements. Although the
Company operates in a single business segment, its operations are comprised of
two distinct businesses: one operates wholly-owned computer training centers,
and the other supplies systems of instruction, sales and management concepts
concerning computer training to independent franchisees.
Corporate revenues are defined as revenues from company-owned training centers,
initial franchise fees and royalties from franchised operations. Systemwide
revenues are defined as total revenues from all centers, both company-owned and
franchised. Systemwide revenues are used to gauge the growth rate of the entire
New Horizons training network.
Revenues from company-owned training centers operated by New Horizons consist
primarily of training fees and fees derived from the sale of courseware
material. Cost of revenues consists primarily of instructor costs, rent,
utilities, and classroom equipment; courseware development costs; and computer
hardware, software and peripheral expenses. Included in selling, general and
administrative expenses are costs associated with technical support personnel,
facilities support personnel, scheduling personnel, training personnel,
accounting and finance personnel and sales executives.
Revenues from franchising consist primarily of initial franchise fees paid by
franchisees for the purchase of specific franchise territories and franchise
rights; training royalty and advertising fees based on a percentage of gross
training revenues realized by the franchisees; and percentage royalty fees
received on the sales of courseware. Cost of revenues consists primarily of
costs associated with franchise support personnel who provide system guidelines
and advice on daily operating issues including sales, marketing, instructor
training, and general business problems. Included in selling, general and
administrative expenses are technical support, courseware development,
accounting and finance support, Major Account Program support, advertising
expenses, and franchise sales expenses.
RESULTS OF OPERATIONS 1997 VERSUS 1996
REVENUES OF CONTINUING OPERATIONS
Revenues for 1997 increased $11,364,000 to $52,633,000 or 27.5% over the
$41,269,000 realized in 1996. Revenues include revenues from company-owned
locations, initial franchise fees and royalties from franchise operations. The
increase in revenues was attributable to significant growth in royalties and
from revenues at company-owned locations.
Revenues at company-owned centers increased 23.1% to $38,692,000 from
$31,425,000 in 1996. The increase was primarily attributable to the addition of
a new training center in New York City, the full year's operation of the Los
Angeles training center and the addition of classrooms in the Santa Ana training
facility.
In the Company's franchising operation, royalty fees for 1997 were $12,686,000,
up 48.0% over the 1996 total of $8,574,000. The increase was principally due to
a 39.4% revenue increase at locations open more than one year and the addition
of 28 franchise locations during the year. Franchise fees for 1997 were
$1,255,000, down 1.3% from the 1996 total of $1,271,000. At the end of 1997,
there were 175 franchise locations in operation, up 19.0% over the 147 in
operation at the end of 1996. One hundred fourteen locations operate in the U.S.
and Canada while 61 operate in 21 other countries around the world.
Systemwide revenues, which are defined as revenues from all centers, both
company-owned and franchised, increased to $267,377,000 at the end of 1997, up
39.2% from $192,134,000 in 1996.
10
<PAGE>
COST OF REVENUES OF CONTINUING OPERATIONS
Cost of revenues increased $6,214,000 or 30.2% for 1997 compared to 1996. As a
percentage of revenues, cost of revenues increased to 50.9% for 1997 from 49.9%
for 1996. Cost of revenues includes direct training costs, such as instructor
payroll and benefits, facilities rent, cost of computer equipment, courseware
consumption and development costs, and other training delivery costs.
The increase in cost of revenues in absolute dollars and as a percentage of
revenues was due to higher training, facilities and depreciation expenses
associated with the addition of a new center in New York City, the expansion of
the center in Santa Ana, and the full year's operation of the new company-owned
training center in Los Angeles.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES OF CONTINUING OPERATIONS
Selling, general and administrative expenses increased $4,305,000 or 22.6% for
1997 compared to 1996. As a percentage of revenues, selling, general and
administrative expenses declined to 44.4% for 1997 from 46.2% for 1996. The
increase in absolute dollars for selling, general and administrative expenses
was due primarily to growth in spending in the areas of sales and marketing,
national advertising, expansion of the Major Accounts Program, franchise support
for domestic and international operations, and expenses associated with the new
center in Los Angeles and expansion in New York City. The decrease in selling,
general and administrative expense as a percentage of revenues was principally
due to the significant growth in revenues and control of the addition of
non-revenue producing employees.
OPERATING INCOME FROM CONTINUING OPERATIONS
Operating income for 1997 increased $844,000 to $2,451,000 or 52.5% from
$1,607,000 in 1996. As a percentage of revenues, operating income was 4.7%
compared to 3.9% in 1996. The increase in operating income for 1997 in absolute
dollars and as a percentage of revenues was due principally to the growth in
company-owned and franchising revenues and the reduction in selling, general and
administrative expenses, as a percentage of revenue.
INTEREST INCOME (EXPENSE) FROM CONTINUING OPERATIONS
Interest income for 1997 increased $1,090,000 or 517% to $1,301,000 compared
with $211,000 in 1996. As a percentage of revenues, interest income increased to
2.5% for 1997 from 0.5% for 1996. The Company earned $835,000 in tax free income
up from $211,000 in 1996. The increase in interest income in 1997, both in
absolute dollars and as a percentage of revenues, was due mainly to the
substantial increase in short term investment funds resulting from the sale of
the environmental business and the cash received from the release of certain
franchise obligations discussed below.
Interest expense increased $118,000 to $469,000 for 1997 or 33.6% compared to
$351,000 in 1996. As a percentage of revenues, interest expense was 0.9% for
both 1997 and 1996. The rise in interest expense in absolute dollars was due
mainly to purchases of equipment under capital lease arrangements in 1996, and
bank financing in 1997.
GAIN FROM RELEASE OF CERTAIN FRANCHISE OBLIGATIONS
On February 28, 1997 the Company received cash consideration of $2,600,000 in
return for releasing the franchise obligations of an owner of four New Horizons
training centers in the State of New York. The Company is aggressively
attempting to re-franchise the territories that became available as a result of
this transaction and successfully resold one of the territories in the second
quarter of 1997.
INCOME TAXES OF CONTINUING OPERATIONS
The provision for income taxes as a percentage of income before income taxes was
38.6% for 1997 compared to 45.6% for 1996. The decrease in the effective tax
rate was due principally to higher tax free interest income resulting from the
investment of excess cash primarily in tax free municipal bond funds.
NET INCOME FROM CONTINUING OPERATIONS
Net income from continuing operations for 1997 was $3,614,000 an increase of
$2,816,000 or 353% as compared to $798,000 for 1996.
11
<PAGE>
RESULTS OF OPERATIONS 1996 VERSUS 1995
REVENUES OF CONTINUING OPERATIONS
Revenues for 1996 increased $17,536,000 to $41,269,000 or 73.9% over the
$23,733,000 realized in 1995. Revenues include revenues from company-owned
locations, initial franchise fees and royalties from franchise operations. The
increase in revenues was attributable to growth in each revenue category
reported by the Company. Revenues at company-owned locations and from its
franchising operations for 1996 were significantly higher compared with 1995.
Revenues at company-owned centers increased 68.2% to $31,425,000 from
$18,686,000 in 1995. The increase was primarily attributable to a 46.2% growth
in revenues at company-owned centers open over one year, which was due to more
effective use of physical facilities and the addition of classrooms. In
addition, the increase was partially attributable to the opening of a
company-owned training center in Los Angeles during the first quarter of 1996
and the inclusion of the results of the Cleveland training center which the
Company began consolidating effective as of the beginning of fiscal 1996 when
the Company assumed full control of its operations.
In the Company's franchising operation, initial franchise fees increased 88.6%
to $1,271,000 from $674,000 in 1995. The increase was due primarily to the
greater number of franchises sold in 1996 versus 1995. Franchise royalty fees
for 1996 were $8,574,000, up 96% over the 1995 total of $4,374,000. The increase
was principally due to a 65.8% revenue increase at locations open more than one
year and the addition of 41 franchise locations during the year. At the end of
1996, there were 147 franchise locations in operation, up 38.7% over the 106 in
operation at the end of 1995. Of these locations, 103 were in operation in the
United States while 44 were in operation in 23 countries around the world.
Systemwide revenues, which are defined as revenues from all centers, both
company-owned and franchised, increased to $192,134,000 at the end of 1996, up
86.9% from $102,787,000 in 1995.
COST OF REVENUES OF CONTINUING OPERATIONS
Cost of revenues increased $7,436,000 or 56.5% for 1996 compared to 1995. As a
percentage of revenues, cost of revenues declined to 49.9% for 1996 from 55.5%
for 1995. Cost of revenues includes direct training costs, such as instructor
payroll and benefits, facilities rent, cost of computer equipment, courseware
development, and other training delivery costs.
For 1996 the increase in cost of revenues was due primarily to higher training,
courseware and depreciation and amortization expenses, costs associated with the
opening of the new company-owned training center in Los Angeles, and costs
associated with the Cleveland operations. The decrease in cost of revenues as a
percentage of revenues was primarily due to improved absorption of fixed costs
and increased revenues.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES OF CONTINUING OPERATIONS
Selling, general and administrative expenses increased $7,305,000 or 62.1% for
1996 compared to 1995. As a percentage of revenues, selling, general and
administrative expenses declined to 46.2% for 1996 from 49.5% for 1995. The
increase in absolute dollars for selling, general and administrative expenses
was due primarily to growth in spending in the areas of sales and marketing
(creation of a marketing department), national advertising, the implementation
of the Major Accounts Program, expansion of support for the technical training
business, and expenses associated with the Los Angeles and Cleveland operations.
The decrease in selling, general and administrative expense as a percentage of
revenues was principally due to the significant growth in revenues.
Selling, general and administrative expenses for 1995 includes a provision for
an investment loss and an asset write-off in the aggregate of $812,000. In
February 1995, the Company entered into a joint venture and acquired a minority
interest in a limited liability company by contributing the assets of its
Cleveland operations and cash. In the third quarter of 1995, an affiliate of the
venture's majority member filed for bankruptcy and the Company assumed
management of the center operated by this joint venture. The Company provided
for the loss on the joint venture in the amount of $650,000.
Operating results of this operation have been consolidated with the Company's
continuing operations since January 1996. In addition, the Company wrote off the
unamortized developmental costs of a software program which had been in
development prior to its acquisition by the Company in August 1994. The
write-off amounted to $162,000.
12
<PAGE>
OPERATING INCOME (LOSS) FROM CONTINUING OPERATIONS
Operating income for 1996 rose to $1,607,000 from a loss of $1,188,000 incurred
in 1995. As a percentage of revenues, operating income was 3.9% compared to a
loss of 5.0% in 1995. The increase in operating income for 1996 in absolute
dollars and as a percentage of revenues was due principally to a significant
growth in company-owned and franchising revenues.
INTEREST INCOME (EXPENSE) FROM CONTINUING OPERATIONS
Interest income for 1996 decreased $20,000, or 8.7%, to $211,000 compared with
$231,000 in 1995. As a percentage of revenues, interest income declined to 0.5%
for 1996 from 1.0% for 1995. The decline in interest income in absolute dollars
was due mainly to the utilization of cash reserves to satisfy the working
capital needs of the discontinued environmental segment early in 1996. The
decline in interest income as a percentage of revenues was primarily due to the
growth in revenues.
Interest expense increased $251,000 to $351,000 for 1996, or 251%, compared to
1995. As a percentage of revenues, interest expense rose to 0.9% from 0.4% in
1995. The rise in interest expense, both in absolute dollars and as a percentage
of revenues, was due mainly to purchases of equipment under capital lease
arrangements.
INCOME TAXES OF CONTINUING OPERATIONS
The provision for income taxes as a percentage of income before income taxes was
45.6% for 1996 compared with a provision for income tax benefit of 41.6% for
1995.
NET INCOME (LOSS) OF CONTINUING OPERATIONS
Net income for 1996 was $798,000 compared to a net loss of $617,000 for 1995.
Included in the 1995 results were provisions for a loss on an investment and an
asset write-off in the aggregate of $812,000 pretax.
DISCONTINUED OPERATIONS
SALE OF ENVIRONMENTAL BUSINESS UNIT AND CHANGE OF CORPORATE NAME
On December 27, 1996, Handex Corporation completed the sale of its environmental
business segment to ECB, Inc. ("ECB"), a Florida corporation, and simultaneously
changed its name from Handex Corporation to New Horizons Worldwide, Inc. (the
"Company" or "New Horizons"). This name change was effected so as to more
closely identify with its continuing educational training business, which
conducts business under the name New Horizons Computer Learning Centers. Both
the transaction and the name change were authorized by stockholders at a Special
Meeting of the Stockholders held on December 20, 1996.
DESCRIPTION OF THE TRANSACTION
The Company sold all of the issued and outstanding shares of capital stock of
Handex Environmental, Inc., a wholly-owned subsidiary of the Company, to ECB,
Inc. Handex Environmental, Inc. was a holding company for several subsidiaries
("Environmental Subsidiaries") which conducted the Company's environmental
remediation services.
Under the sale agreement, ECB acquired the stock of the Company's environmental
subsidiaries with a net asset value of $10,300,000 for $4,600,000 in cash, and
other consideration, including a promissory note and preferred stock in the
amount of $3,700,000 and $2,000,000, respectively. Assets of the discontinued
segment in excess of $10,300,000, consisting principally of accounts receivable
were retained by the Company. The Company incurred a loss on the disposal of the
segment of $7,303,000 consisting primarily of valuation reserves on the
promissory note and the preferred stock in the amount of $2,960,000 and
$1,600,000, respectively, a goodwill write-off of approximately $1,800,000 and
transaction costs of approximately $966,000. There is no expected tax benefit
from this loss.
13
<PAGE>
CONSIDERATION RECEIVED BY THE COMPANY; USE OF PROCEEDS
The Company received aggregate consideration in the face amount of approximately
$21,954,000. The consideration received by the Company from ECB consisted of:
(i) $4,600,000 in cash; (ii) a promissory note in the original principal amount
of $3,700,000 (subject to adjustment in certain events) due on April 30, 2002
and bearing interest at the rate of 6% per annum; (iii) 2,000 shares of Series A
Preferred Stock, stated value $1,000 per share of ECB; (iv) a six-year warrant
to acquire 300,000 common shares of ECB at a price of $1.32 per share ("Warrant
A"); (v) a six-year Warrant to acquire 85,000 common shares of ECB at a price of
$1.60 per share ("Warrant B") (Warrant A and Warrant B are collectively referred
to herein as the "Warrants"); and (vi) one-third of the redemption value of a
small interest in a joint venture, when paid or available to be paid to ECB. In
addition, immediately prior to the closing, the Company received a dividend of
cash, accounts receivable and other assets owned by the environmental
subsidiaries having a book value of $11,654,000 at December 27, 1996.
The face amount of the non-cash consideration received by the Company (excluding
the Warrants) was $5,700,000. However, because ECB was a newly organized entity
with no history of prior operations, and because of the significant amount of
indebtedness that ECB incurred in connection with the transaction, the Company
established a valuation reserve with respect to the non-cash consideration in
the amount of $4,560,000. In addition, neither the warrants nor the interest in
the joint venture were given any value in determining the loss on the disposal
of the environmental business or for balance sheet presentation purposes.
For a more detailed description of the transaction, see the Company's Proxy
Statement dated December 3, 1996, and the appendices thereto and information
incorporated by reference therein.
RESULTS OF DISCONTINUED OPERATIONS 1997 VERSUS 1996, AND 1996 VERSUS 1995
For the year ended December 31, 1997, the Company's involvement in the
discontinued operations of Handex Environmental, Inc. consisted primarily of
collecting accounts receivable and liquidating other assets received as part of
the aforementioned dividend and resolving certain legal matters pertinent to the
wind down of the environmental business.
In December 1997 the Company received $2,000,000 from ECB, Inc. in redemption of
the 2,000 shares of Series A Preferred Stock which had a stated value of $1,000
per share. In 1996 the Company had established a valuation reserve of $1,600,000
against the face amount of the Preferred Stock which it reversed upon the
receipt of the redemption proceeds. Upon further analysis of the remaining
assets and liabilities of the environmental business, the Company recorded an
additional provision of $1,251,000 to reflect the expected realization value of
those assets and liabilities. As a result of the redemption of the Series A
Preferred Stock ECB, Inc. was also able to redeem at no cost the six-year
warrant to acquire 300,000 common shares of ECB at a price of $1.32 per share
and the six-year warrant to acquire 85,000 common shares of ECB at a price of
$1.60 per share. The Company, in 1996, ascribed no value to the warrants so the
redemption in 1997 had no effect on its financial results.
As a result of the sale of the environmental business in 1996, the Company
incurred a third quarter non-cash, after tax charge of $7,303,000, or $1.06 per
share. This charge, representing a loss on the disposal of discontinued
operations, consists primarily of the write-off of goodwill which approximated
$1,800,000, transaction costs which approximated $966,000 and valuation reserves
that totaled about $4,560,000. An operating loss from discontinued operations of
$130,000, or $0.02 per share combined with the loss on disposal, resulted in a
full year 1996 loss from discontinued operations of $7,433,000 or $1.08 per
share.
LIQUIDITY AND CAPITAL RESOURCES
As of December 31, 1997, the Company's current ratio was 2.8 to 1, working
capital was $27,002,000 and its cash, cash equivalents and short term
investments totaled over $26,187,000. Working capital as of December 31, 1997,
reflected an increase of $3,936,000 from $23,066,000 as of December 28, 1996.
The increase was due principally to the net income earned for the year and the
proceeds received from the redemption of the 2,000 shares of Series A Preferred
Stock of ECB, Inc.
As part of the sale transaction of the environmental business in 1996, the
Company retained over $9,300,000 in net accounts receivable. By the end of 1997
$6,700,000 of these receivables had been collected by the Company. Approximately
$2,700,000 of the retained receivables are due from the State of Florida's
Inland Protection Trust Fund. The payment term for these receivables is
dependent on the State's funding position.
In a separate transaction, on February 28, 1997, the Company received cash
consideration of $2,600,000 in return for releasing the franchise obligations of
an owner of four New Horizons franchises in New York State.
14
<PAGE>
The Company presently intends to use its cash to support the expansion of the
educational business.
The Company currently maintains a $2,750,000 credit facility for the purchases
of equipment with a commercial bank, of which $2,692,000 was available at
December 31, 1997. This facility bears interest at a variable interest rate
equal to .5% over the bank's prime rate (8.5% at December 31, 1997). The credit
facility expires on June 1, 1998 at which time the Company expects to enter into
a similar credit facility for future equipment purchases.
At December 31, 1997 the Company had term loans outstanding with its bank in the
amount of $901,000. On February 4, 1998 the Company paid off those loans in
full.
The nature of the information technology and training industry requires
substantial cash commitments for the purchase of state-of-the-art computer
equipment, software and training facilities. During 1997, New Horizons spent
approximately $4,455,000 on capital items. Capital expenditures for 1998 are
expected to total approximately $2,300,000.
Management believes that its current working capital position, cash flows from
operations, cash collected from retained accounts receivable, along with its
credit facility, will be adequate to support its current and anticipated capital
and operating expenditures and its strategies to grow its computer education and
training business.
IMPACT OF ACCOUNTING PRONOUNCEMENTS
As of December 31, 1997 the Company adopted Statement of Financial Accounting
Standards No. 128, "Earnings Per Share" (SFAS No. 128). SFAS No. 128 requires
the Company to report Basic EPS, as defined therein, which assumes no dilution
from outstanding options, and Diluted EPS, as defined therein, which assumes
dilution from the outstanding options. Earnings per share amounts for all
periods presented have been restated to conform to the requirements of SFAS No.
128.
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No.
130, "Reporting Comprehensive Income" and SFAS No. 131, "Disclosures About
Segments of an Enterprise and Related Information". SFAS No. 130 and SFAS No.
131 must be adopted by the Company beginning with 1998 and will result in an
additional statement that reports comprehensive income and expanded disclosure
regarding the Company's operations on a segmented basis.
YEAR 2000
The inability of computers, software and other equipment utilizing
microprocessors to recognize and properly process data fields containing a 2
digit year is commonly referred to as the Year 2000 Compliance issues. As the
year 2000 approaches, such systems may be unable to accurately process certain
date-based information.
The Company has identified all significant applications that will require
modification to ensure Year 2000 Compliance. Internal and external resources are
being used to make the required modifications and test Year 2000 Compliance. The
modification process of all significant applications is substantially complete.
The Company plans on completing the testing process of all significant
applications by December 31, 1999.
In addition, the Company has communicated with others with whom it does
significant business to determine their Year 2000 Compliance readiness and the
extent to which the Company is vulnerable to any third party Year 2000 issues.
However, there can be no guarantee that the systems of other companies on which
the Company's systems rely will be timely converted, or that a failure to
convert by another company, or a conversion that is incompatible with the
Company's systems, would not have a material adverse effect on the Company.
The total cost to the Company of these Year 2000 Compliance activities has not
been and is not anticipated to be material to its financial position or results
of operations in any given year. These costs and the date on which the Company
plans to complete the Year 2000 modification and testing processes are based on
management's best estimates, which were derived utilizing numerous assumptions
of future events, including the continued availability of certain resources,
third party modification plans and other factors. However, there can be no
guarantee that these estimates will be achieved and actual results could differ
from those plans.
15
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Pages F-1 to F-15 and page 21 contain the Financial Statements and supplementary
data specified for Item 8 of Part II of Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
On September 8, 1997 the Company dismissed its independent accountants KPMG Peat
Marwick, LLP. The accountants' reports for the year's ended December 28, 1996
and December 30, 1995 did not contain an adverse opinion or disclaimer of
opinion and were not qualified or modified as to uncertainty, audit scope, or
accounting principles. During the aforementioned periods and the interim periods
through dismissal there were no disagreements with KPMG Peat Marwick, LLP on any
matter of accounting principles or practices, financial statement disclosure, or
auditing scope or procedure.
On October 1, 1997 Deloitte & Touche, LLP was selected as the Company's
independent accountants.
16
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders of
New Horizons Worldwide, Inc.:
We have audited the accompanying consolidated balance sheet of New Horizons
Worldwide, Inc. and subsidiaries (the Company) as of December 31, 1997 and the
related consolidated statements of operations, stockholders' equity and cash
flows for the year then ended. These financial statements are the responsibility
of the Company's management. Our audit also included the consolidated financial
statement schedule for the year ended December 31, 1997 as listed in the Index
at Item 14(a)(2). Our responsibility is to express an opinion on these financial
statements and financial statement schedule based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, such consolidated financial statements referred to above
present fairly, in all material respects, the financial position of New Horizons
Worldwide, Inc. and subsidiaries as of December 31, 1997 and the results of
their operations and their cash flows for the year then ended in conformity with
generally accepted accounting principles. Also, in our opinion, such financial
statement schedule, when considered in relation to the basic financial
statements taken as a whole, presents fairly, in all material respects, the
information set forth therein.
DELOITTE & TOUCHE LLP
February 27, 1998
Costa Mesa, California
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders of
New Horizons Worldwide, Inc.:
We have audited the accompanying consolidated balance sheet of New Horizons
Worldwide, Inc. and subsidiaries as of December 28, 1996 and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years in the two-year period ended December 28, 1996. In connection
with our audits of the consolidated financial statements, we also have audited
the consolidated financial statement schedule for the years ended December 28,
1996 and December 30, 1995, as listed in the accompanying index at Item
14(a)(2). These consolidated financial statements and the consolidated financial
statement schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements and consolidated financial statement schedule based on our audit.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of New Horizons
Worldwide, Inc. and subsidiaries as of December 28, 1996 and the results of
their operations and their cash flows for each of the years in the two-year
period ended December 28, 1996 in conformity with generally accepted accounting
principles. Also in our opinion, the related consolidated financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly, in all material respects, the
information set forth therein.
KPMG Peat Marwick LLP
Cleveland, Ohio
March 20, 1998
F-2
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEETS
NEW HORIZONS WORLDWIDE, INC. AND SUBSIDIARIES
DECEMBER 31, 1997 AND DECEMBER 28, 1996
1997 1996
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 3,129,105 $ 11,410,868
Investments 23,057,960 300,000
Accounts receivable, less allowance for doubtful accounts of
$1,692,687 in 1997 and $1,610,854 in 1996 11,887,108 17,703,228
Inventories 720,144 606,453
Prepaid expenses 731,327 538,809
Deferred income tax assets (Note 5) 1,428,862 825,329
Other current assets 886,380 5,032,769
------------ ------------
Total current assets 41,840,886 36,417,456
Property, plant and equipment, net (Note 3) 7,848,032 6,804,774
Excess of cost over net assets of acquired companies, net of
accumulated amortization of $1,237,868 in 1997 and $868,143 in 1996 13,546,529 13,920,041
Cash surrender value of life insurance (Note 6) 758,047 674,350
Other assets (Note 6) 2,577,836 2,655,761
------------ ------------
TOTAL ASSETS $ 66,571,330 $ 60,472,382
============ ============
LIABILITIES & STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable and current portion of long-term obligations (Note 2) $ 1,791,553 $ 1,449,052
Accounts payable 2,489,107 2,302,469
Income taxes payable 1,049,456 96,145
Other current liabilities (Note 7) 9,508,395 9,504,275
------------ ------------
Total current liabilities 14,838,511 13,351,941
Long-term obligations, excluding current portion (Note 2) 1,516,518 2,329,672
Deferred income tax liability (Note 5) 562,542 798,215
Deferred rent (Note 10) 598,212 235,535
------------ ------------
Total liabilities 17,515,783 16,715,363
------------ ------------
Commitments and contingencies (Note 10) -- --
Stockholders' equity (Note 9):
Preferred stock without par value, 2,000,000 shares authorized, no
shares issued -- --
Common stock, $.01 par value, 15,000,000 shares authorized; issued
and outstanding 7,327,331 shares in 1997 and 7,163,660 shares
in 1996 73,273 71,637
Additional paid in capital 26,645,506 25,312,279
Retained Earnings 23,634,893 19,671,228
Treasury stock - 185,000 shares in 1997 and 1996 (1,298,125) (1,298,125)
------------ ------------
Total stockholders' equity 49,055,547 43,757,019
------------ ------------
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $ 66,571,330 $ 60,472,382
============ ============
</TABLE>
See accompanying notes to consolidated financial statements
F-3
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF OPERATIONS
NEW HORIZONS WORLDWIDE, INC. AND SUBSIDIARIES
YEARS ENDED DECEMBER 31, 1997, DECEMBER 28, 1996 AND DECEMBER 30, 1995
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Revenues
Franchising
Franchise fees $ 1,255,135 $ 1,270,500 $ 673,588
Royalties 12,686,400 8,573,968 4,373,883
------------ ------------ ------------
Total franchising revenues 13,941,535 9,844,468 5,047,471
Company-owned training centers 38,691,543 31,425,027 18,685,737
------------ ------------ ------------
Total revenues 52,633,078 41,269,495 23,733,208
Cost of revenues 26,813,990 20,599,592 13,164,000
Selling, general and administrative expenses 23,367,986 19,062,680 11,757,631
------------ ------------ ------------
Operating income (loss) 2,451,102 1,607,223 (1,188,423)
Gain from release of certain franchise obligations 2,600,000 -- --
Interest income (expense), net 832,317 (140,347) 130,595
------------ ------------ ------------
Income (loss) from continuing operations before
income taxes 5,883,419 1,466,876 (1,057,828)
Provision (benefit) for income taxes 2,268,809 668,982 (440,474)
------------ ------------ ------------
Income (loss) from continuing operations 3,614,610 797,894 (617,354)
Discontinued operations (Note 12):
Income (loss) from discontinued operations
net of applicable income taxes of $0, $84,583,
and $509,983 for 1997, 1996 and 1995,
respectively 349,055 (130,041) 424,313
Loss on disposal of discontinued operations -- (7,303,000) --
------------ ------------ ------------
Income (loss) from discontinued operations 349,055 (7,433,041) 424,313
------------ ------------ ------------
Net income (loss) $ 3,963,665 $ (6,635,147) $ (193,041)
============ ============ ============
BASIC EARNINGS PER SHARE
Income (loss) per share from continuing operations $ 0.51 $ 0.12 $ (0.09)
Income (loss) per share from discontinued operations 0.05 (1.08) 0.06
------------ ------------ ------------
Net income (loss) per share $ 0.56 $ (0.96) $ (0.03)
============ ============ ============
DILUTED EARNINGS PER SHARE
Income (loss) per share from continuing operations $ 0.50 $ 0.11 $ (0.09)
Income (loss) per share from discontinued operations $ 0.05 $ (1.06) $ 0.06
------------ ------------ ------------
Net income (loss) per share $ 0.55 $ (0.95) $ (0.03)
============ ============ ============
</TABLE>
See accompanying notes to consolidated financial statements
F-4
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
NEW HORIZONS WORLDWIDE, INC. AND SUBSIDIARIES
YEARS ENDED DECEMBER 31, 1997, DECEMBER 28, 1996 AND DECEMBER 30, 1995
ADDITIONAL
COMMON STOCK PAID-IN RETAINED TREASURY STOCKHOLDERS'
SHARES AMOUNT CAPITAL EARNINGS STOCK EQUITY
--------- ------- ------------ ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1995 7,050,212 $70,502 $ 24,365,566 $ 26,499,416 $(1,298,125) $ 49,637,359
Registration expense for warrants
issued in 1994 -- -- (16,024) -- -- (16,024)
Net loss, year ended December 30, 1995 -- -- -- (193,041) -- (193,041)
--------- ------- ------------ ------------ ----------- ------------
BALANCE AT DECEMBER 30, 1995 7,050,212 70,502 24,349,542 26,306,375 (1,298,125) 49,428,294
Issuance of Common Stock for stock
options 113,448 1,135 742,094 -- -- 743,229
Income tax benefit from the exercise of
stock options -- -- 224,243 -- -- 224,243
Registration expense for warrants
issued in 1994 -- -- (3,600) -- -- (3,600)
Net loss, year ended December 28, 1996 -- -- -- (6,635,147) -- (6,635,147)
--------- ------- ------------ ------------ ----------- ------------
BALANCE AT DECEMBER 28, 1996 7,163,660 71,637 25,312,279 19,671,228 (1,298,125) 43,757,019
Issuance of Common Stock for stock options 163,671 1,636 1,035,306 -- -- 1,036,942
Income tax benefit from the exercise of -- -- 297,921 -- -- 297,921
stock options
Net income, year ended December 31, 1997 -- -- -- 3,963,665 -- 3,963,665
--------- ------- ------------ ------------ ----------- ------------
BALANCE AT DECEMBER 31, 1997 7,327,331 $73,273 $ 26,645,506 $ 23,634,893 $(1,298,125) $ 49,055,547
========= ======= ============ ============ =========== ============
</TABLE>
See accompanying notes to consolidated financial statements
F-5
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF CASH FLOWS
NEW HORIZONS WORLDWIDE, INC. AND SUBSIDIARIES
YEARS ENDED DECEMBER 31, 1997, DECEMBER 28, 1996 AND DECEMBER 30, 1995
1997 1996 1995
------------ ------------ -----------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 3,963,665 $ (6,635,147) $ (193,041)
ADJUSTMENTS TO RECONCILE NET INCOME (LOSS) TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
Depreciation and amortization 3,785,780 2,863,405 1,724,023
Loss on disposal of equipment 3,503 44,519 161,748
Deferred income taxes (839,206) 16,768 40,601
Gain from release of certain franchise obligations (2,600,000) -- --
Cash provided (used) from the change in:
Accounts receivable 5,816,120 (1,547,077) (88,061)
Inventories (113,691) (236,863) (198,424)
Prepaid expenses and other current assets 3,953,871 (429,914) (259,793)
Other assets (1,577,436) (389,797) (500,619)
Accounts payable 186,638 3,459,559 426,270
Accrued expenses 4,120 2,555,357 2,218,028
Income taxes payable (refundable) 1,251,232 739,862 (83,949)
Deferred rent 362,677 28,813 --
Non-cash charges and working capital changes
from discontinued operations (349,057) 7,767,991 1,552,022
------------ ------------ -----------
Net cash provided by operating activities 13,848,216 8,237,476 4,798,805
------------ ------------ -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of marketable securities (22,757,960) -- (5,775,000)
Redemption of marketable securities -- 2,475,000 6,940,000
Cash surrender value of life insurance (83,697) -- --
Cash received from release of certain franchise
obligations 2,600,000 -- --
Cash received on redemption of preferred stock 2,000,000 -- --
Additions to property, plant and equipment:
Continuing operations (4,454,611) (4,943,098) (2,688,458)
Discontinued operations -- (1,010,213) (1,500,578)
Cash paid for acquired companies, net of cash acquired:
Continuing operations -- (56,403) (500,327)
Discontinued operations -- -- (368,262)
------------ ------------ -----------
Net cash used by investing activities (22,696,268) (3,534,714) (3,892,625)
------------ ------------ -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock 1,036,942 743,229 --
Proceeds from debt obligations 1,265,447 3,383,921 766,992
Principal payments on debt obligations (1,736,100) (1,067,852) (714,171)
Other -- (3,600) (16,024)
------------ ------------ -----------
Net cash provided by financing activities 566,289 3,055,698 36,797
------------ ------------ -----------
Net increase (decrease) in cash and cash equivalents (8,281,763) 7,758,460 942,977
Cash and cash equivalents at beginning of period 11,410,868 3,652,408 2,709,431
------------ ------------ -----------
Cash and cash equivalents at end of period $ 3,129,105 $ 11,410,868 $ 3,652,408
============ ============ ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash was paid for:
Interest $ 322,824 $ 351,325 $ 104,460
============ ============ ===========
Income taxes $ 1,530,376 $ 287,465 $ 568,650
============ ============ ===========
</TABLE>
See accompanying notes to consolidated financial statements
F-6
<PAGE>
NEW HORIZONS WORLDWIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997, DECEMBER 28, 1996 AND DECEMBER 30, 1995
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
New Horizons Worldwide, Inc. (New Horizons or the Company) both owns and
franchises computer training centers. The Company's training centers provide
application software and technical certification training to a wide range of
employer-sponsored individuals from national and international public and
private corporations, service organizations and government agencies. As of
December 31, 1997, the Company and its franchisees delivered training in 8
company-owned and 175 franchised locations in 23 countries around the world.
On December 27, 1996, the Company completed a transaction to sell its
environmental business (Note 12) and simultaneously changed its name from Handex
Corporation to New Horizons Worldwide to more closely identify with its
continuing educational training business. As a result of the transaction, the
Company's educational business is its sole business. New Horizons, the surviving
company, remains a public company, trading under the symbol "NEWH" on NASDAQ.
BASIS OF ACCOUNTING AND PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of New Horizons
Worldwide, Inc., and its subsidiaries, all of which are wholly-owned. All
significant intercompany balances and transactions have been eliminated in
consolidation.
FRANCHISE SALES
The terms of a typical franchise agreement allow for the sale of individual
franchises to operators of computer learning centers for an initial fee of
$20,000, $40,000 or $60,000 depending on the estimated number of personal
computers within a given territory. Operators of existing computer training
centers receive a $5,000 or $10,000 conversion allowance against the initial
fee, depending on the market size. Additionally, franchisees are assessed the
following fees, among other fees, as defined by the franchise agreement:
a. CONTINUING MONTHLY ROYALTY
The fee amount is equal to the greater of 3% to 6% of gross revenues or
$1,000. Amounts commence accruing on the effective date of the franchise
agreement for new operators and in the sixth month after the effective date
of the franchise agreement for operators converting their existing computer
learning center to a New Horizons.
b. COURSE MATERIAL ROYALTY
The fee amount is equal to 9% of gross revenues from course materials
sold to third parties.
c. MARKETING AND ADVERTISING FEE
The fee amount is equal to 1% of gross revenues for franchisees in the
United States and Canada. Amounts commence accruing on the date the
franchise commences operation of the franchise business.
On February 28, 1997 the Company received cash consideration of $2,600,000 in
return for releasing the franchise obligations of an owner of four New Horizons
training centers in the State of New York. The Company is aggressively
attempting to re-franchise the territories that became available as a result of
this transaction and successfully resold one of the territories in the second
quarter of 1997.
REVENUE RECOGNITION
Revenues for training services and franchise royalty fees are recognized as
earned. Initial franchise fees are recognized when the Company has supplied
substantially all of the services and met all of the conditions of the sale of
the franchise rights.
F-7
<PAGE>
INVESTMENTS
The Company accounts for investments pursuant to Statement of Financial
Accounting Standards (SFAS) No. 115, "Accounting for Certain Investments in Debt
and Equity Securities." At December 31, 1997 and December 28, 1996, the
Company's investments have been categorized as "available for sale" and, as a
result, are stated at fair value. Accordingly, any unrealized holding gains and
losses are to be included as a component of stockholders' equity, net of tax,
until realized. Investments consist principally of $5,400,000 of tax exempt
bonds and $17,658,000 of municipal bond funds. As of December 31, 1997, the tax
exempt bonds consisted of $2,900,000 of bonds scheduled to mature in July 2022
and $2,500,000 of bonds scheduled to mature in November 2025.
There were no unrealized gains or losses as of December 31, 1997 and December
28, 1996, as fair value approximated cost. During the years ended December 31,
1997 and December 28, 1996, there were no realized gains or losses from the sale
of securities.
INVENTORIES
Inventories are stated at the lower of cost or market. Inventory costs are
determined using the first-in, first-out (FIFO) method.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are stated at cost.
Depreciation is provided over the estimated useful lives of the respective
assets, using the straight line method as follows:
Equipment 3 to 5 years
Furniture and fixtures 5 to 10 years
Leasehold Improvements Term of lease
INCOME TAXES
The Company accounts for income taxes under the asset and liability method in
accordance with SFAS No. 109, "Accounting for Income Taxes". Under this method,
deferred tax assets and liabilities are recognized for the estimated future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases, and operating loss and tax credit carry forwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years when those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
When options granted under the Company's stock option plans are exercised, the
Company receives a tax deduction related to the difference between the market
value of its common stock at the date of exercise and the sum of the exercise
price and any compensation expense recognized for financial reporting purposes.
The tax benefit resulting from this tax deduction is reflected as a decrease in
the Company's income tax liability and an increase to additional paid-in
capital.
F-8
<PAGE>
INTANGIBLES AND OTHER LONG-LIVED ASSETS
The excess of cost over net assets acquired is being amortized on a
straight-line basis principally over 40 years. The Company assesses the
recoverability of its long lived assets whenever events or changes in
circumstances indicate that the carrying amount of an asset may not be
recoverable.
CASH AND CASH EQUIVALENTS
For purposes of the statements of cash flows, the Company considers all highly
liquid debt instruments with purchased maturities of three months or less to be
cash equivalents.
CONCENTRATION OF CREDIT RISK
The Company's credit risk on trade receivables is diversified over a wide
geographic area and many customers. Ongoing customer credit evaluations are
performed with respect to the Company's trade receivables, and collateral is
generally not required to be provided by the customer.
EARNINGS PER SHARE
As of December 31, 1997 the Company adopted SFAS No. 128, "Earnings Per Share"
(EPS). SFAS No. 128 requires the Company to report Basic EPS, as defined
therein, which assumes no dilution from outstanding options, and Diluted EPS, as
defined therein, which assumes dilution from the outstanding options. Earnings
per share amounts for all periods presented have been restated to conform to the
requirements of SFAS No. 128.
The computation of Basic EPS is based on the weighted average number of shares
actually outstanding during each year. The computation of Diluted EPS is based
upon the weighted average number of shares actually outstanding, plus the shares
that would be outstanding assuming the exercise of all outstanding options,
computed using the treasury stock method. Dilutive options are not considered in
the calculation of net loss per share.
The weighted average number of shares outstanding used in determining Basic EPS
was 7,070,831 in 1997, 6,881,604 in 1996, and 6,865,212 in 1995. The weighted
average number of shares outstanding used in determining Diluted EPS was
7,294,269 in 1997, 6,981,894 in 1996, and 6,865,212 in 1995. The difference
between the shares used for calculating Basic and Diluted EPS relates to common
stock equivalents consisting of stock options outstanding during the respective
periods.
STOCK BASED COMPENSATION
In 1997, the Company adopted SFAS No. 123, "Accounting for Stock-Based
Compensation". The Company adopted the pro forma disclosure requirements of SFAS
No. 123, which requires presentation of the pro forma effect of the fair value
based method on net income and net income per share in the financial statement
footnotes. (See Note 9 - Stock Option Plan)
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income" and SFAS No. 131, "Disclosures About Segments
of an Enterprise and Related Information". SFAS No. 130 and SFAS No. 131 must be
adopted by the Company beginning with 1998 and will result in an additional
statement that reports comprehensive income and an expanded disclosure regarding
the Company's operations on a segmented basis.
RECLASSIFICATION
Certain items on the 1996 and 1995 consolidated balance sheets, statements of
operations and cash flows have been reclassified to conform to the 1997
presentation.
F-9
<PAGE>
<TABLE>
<CAPTION>
2. NOTES PAYABLE AND LONG-TERM OBLIGATIONS
The Company's debt and capital lease obligations are as follows:
1997 1996
----------- -------------
<S> <C> <C>
Note payable to bank at 9.0% interest rate, due June 1, 1998 $ 57,559 $ --
Amounts due under capital leases with effective interest
rates ranging from 8.5% to 14.6% per annum 2,349,742 3,708,192
Note payable to bank at 9.99% interest rate, payable in
monthly principal and interest installments of $9,306 -- 70,532
Note payable to bank at 9.5% interest rate, payable in monthly
principal and interest installments of $34,471, secured by certain
assets of the Company 900,770 --
----------- -------------
3,308,071 3,778,724
Less: Current portion of notes payable and long-term
obligations (1,791,553) (1,449,052)
----------- -------------
$ 1,516,518 $ 2,329,672
=========== =============
</TABLE>
The following is a summary of future payments required under the above
obligations:
1998 $ 1,791,553
1999 1,186,619
2000 308,399
2001 21,500
===========
$ 3,308,071
The Company currently maintains a $2,750,000 credit facility for the purchases
of equipment with a commercial bank of which $2,692,000 was available at
December 31, 1997. This facility bears interest at a variable interest rate
equal to .5% over the bank's prime rate (8.5% as of December 31, 1997). The
credit facility expires on June 1, 1998 at which time the Company expects to
enter into a similar credit facility for future equipment purchases.
3. PROPERTY PLANT AND EQUIPMENT
The components of property, plant and equipment are summarized below:
1997 1996
------------ ------------
Leasehold improvements $ 1,747,546 $ 1,470,707
Equipment and software 11,087,869 7,413,307
Furniture and fixtures 2,366,347 1,847,143
------------ ------------
15,201,762 10,731,157
Less accumulated depreciation and amortization (7,353,730) (3,926,383)
------------ ------------
Property, plant and equipment, net $ 7,848,032 $ 6,804,774
============ ============
Included in the Company's property and equipment are equipment and leasehold
improvements under capital leases amounting to $4,808,887 (1997) and $5,327,936
(1996), net of accumulated depreciation of $2,551,357 (1997) and $1,626,909
(1996).
F-10
<PAGE>
4. CHANGE IN FISCAL YEAR
The Company has changed its accounting period from a 52-53 week year ending
on the Saturday nearest December 31 to a calendar year.
5. INCOME TAXES
Income tax expense for the periods below differs from the amounts computed
by applying the U.S. federal income tax rate of 35 percent to the pretax
income as a result of the following:
<TABLE>
<CAPTION>
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Computed "expected" tax expense
(benefit) $ 2,059,196 $ 513,406 $ (370,239)
Amortization of excess of cost over
net assets acquired 14,700 14,700 14,700
State and local tax expense (benefit), net
of federal income tax effect 345,220 88,900 (61,300)
Foreign income tax 200,719 128,456 36,740
Interest income from tax-free investments (283,922) (71,700) (64,200)
Other (67,104) (4,780) 3,825
----------- ----------- -----------
Income tax expense $ 2,268,809 $ 668,982 $ (440,474)
=========== =========== ===========
Effective rates 38.6% 45.6% (41.6%)
=========== =========== ===========
1997 1996 1995
----------- ----------- -----------
Income tax expense consists of:
Federal
Current 1,755,077 $ 389,056 $ (425,010)
Deferred (313,448) 16,768 40,601
State and local 523,061 134,702 (92,805)
Foreign 304,119 128,456 36,740
----------- ----------- -----------
$ 2,268,809 $ 668,982 $ (440,474)
=========== =========== ===========
</TABLE>
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and liabilities at December 31, 1997 and
December 28, 1996, are presented below:
1997 1996
---------- ----------
Deferred tax assets:
Accounts receivable, principally due to allowance
for doubtful accounts $ 391,829 $ 186,994
Reserve for uninsured losses and litigation 687,665 564,925
Accrued expenses 424,977 141,085
Property, plant and equipment, principally due to
differences in depreciation 183,575 --
---------- ----------
Deferred tax assets 1,688,046 893,004
---------- ----------
Deferred tax liabilities:
Property, plant and equipment, principally due to
differences in depreciation -- 275,736
Excess of cost over net assets of acquired company 736,388 522,479
Loss on joint venture 9,729 22,790
Other 75,609 44,885
---------- ----------
Deferred tax liabilities 821,726 865,890
---------- ----------
Net deferred income taxes $ 866,320 $ 27,114
========== ==========
There is no valuation allowance required at December 31, 1997 and December
28, 1996.
F-11
<PAGE>
6. OTHER ASSETS
A. NOTES RECEIVABLE FROM OFFICER
Included in other assets are notes receivable from an officer of the
Company in the aggregate amount of $624,941 which bear interest at a
weighted average rate of 7.3%. The notes receivable are demand notes
secured by the proceeds from certain life insurance policies.
B. NON-CASH PROCEEDS OF SALE OF ENVIRONMENTAL BUSINESS
Other assets also includes a $3,700,000 note receivable from ECB, Inc.
bearing an interest rate of 6% with a valuation reserve of $2,960,000.
Terms of the note receivable provide for interest in 1997 to be accrued
and added to the principal balance. Beginning on March 31, 1998
interest will be paid quarterly in arrears. Annual principal payments
are scheduled to commence in April 1999 with the minimum principal
payments being $250,000, $500,000, and $750,000 for 1999, 2000, and
2001, respectively, with the balance due April 30, 2002.
Other assets consist of:
1997 1996
----------- -----------
Notes receivable from ECB Inc. $ 3,933,976 $ 3,700,000
Preferred Stock in ECB, Inc. -- 2,000,000
Valuation reserve for ECB, Inc. (2,960,000) (4,560,000)
Other 1,603,860 1,515,761
----------- -----------
$ 2,577,836 $ 2,655,761
=========== ===========
7. OTHER CURRENT LIABILITIES
Other current liabilities consist of:
1997 1996
---------- ----------
Deferred revenues $2,489,973 $1,964,962
Accounts payable to franchisees 1,959,989 1,454,089
Salaries, wages and commissions payable 1,129,532 922,923
Unexpended advertising fund 986,135 635,707
Accrued expenses in connection with the
disposition of the environmental
segment 1,744,424 3,711,030
Other 1,198,342 815,564
---------- ----------
$9,508,395 $9,504,275
========== ==========
8. EMPLOYEE SAVINGS PLAN
The Company established a 401(k) Profit Sharing Trust and Plan in which
employees not currently covered by a collective bargaining agreement are
eligible to participate. None of the Company's employees is currently
covered by a collective bargaining agreement. The plan was established in
1995 and is non-contributory.
9. STOCK OPTION PLAN
The Company maintains a key employee stock option plan which provides for
the issuance of non-qualified options, incentive stock options and stock
appreciation rights. The plan currently provides for the granting of
options to purchase up to 1,200,000 shares of common stock. Incentive stock
options are exercisable for up to ten years, at an option price of not less
than the fair market value on the date the option is granted or at a price
of not less than 110% of the fair market price in the case of an option
granted to an individual who, at the time of grant, owns more than 10% of
the Company's common stock. Non-qualified stock options may be issued at
such exercise price and on such other terms and conditions as the
Compensation Committee of the Board of Directors may determine. Optionees
may also be granted stock appreciation rights under which they may, in lieu
of exercising an option, elect to receive cash or common stock, or a
combination thereof, equal to the excess of the fair market value of the
common stock over the option price. All options were granted at fair market
value at dates of grant.
F-12
<PAGE>
The stock option plan for directors who are not employees of the Company
provides for the issuance of up to 75,000 shares of common stock and may be
issued at such price per share and on such other terms and conditions as the
Compensation Committee may determine. All options were granted at fair market
value at dates of grant.
Changes in shares under option for 1997, 1996 and 1995 are summarized as
follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------------------- --------------------- ---------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
SHARES PRICE SHARES PRICE SHARES PRICE
-------- --------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding, beginning of year ..... 619,641 $ 7.70 738,489 $ 7.53 748,650 $ 7.59
Granted .......................... 200,000 12.52 -- -- 30,739 6.00
Exercised ........................ (134,441) 7.84 (113,448) 6.55 -- --
Canceled ......................... (12,950) 8.86 (5,400) 7.53 (40,900) 7.59
-------- --------- --------- -------- -------- --------
Outstanding, end of year ............ 672,250 $ 9.08 619,641 $ 7.70 738,489 $ 7.53
======== ========= ========= ===== ======== ========
Options exercisable, end of year..... 414,250 $ 7.13 454,651 $ 7.66 424,250 $ 7.36
======== ========= ========= ======== ======== ========
Weighted average fair value of
options granted during the year ... $ 7.71 $ -- $ 3.56
======== ========= ========
</TABLE>
Outstanding stock options at December 31, 1997 consist of the following:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------- ----------------------
WEIGHTED
RANGE OF AVERAGE WEIGHTED WEIGHTED
EXERCISE REMAINING AVERAGE AVERAGE
PRICES SHARES LIFE PRICE SHARES PRICE
---------------- ------- (YEARS) -------- ------- --------
---------
<S> <C> <C> <C> <C> <C>
$ 6.00 - $ 8.81 510,000 6.1 $ 7.70 412,000 $ 7.10
11.06 - 15.56 162,250 5.2 13.42 2,250 11.20
------- -------
6.00 - 15.56 672,250 5.8 $ 9.08 414,250 $ 7.13
======= ====== ======= ======
</TABLE>
The fair value of each option grant was estimated as of the grant date using
the Black-Scholes option-pricing model for 1997 and 1995 assuming a
risk-free interest rate of 6.5%, volatility of 55%, zero dividend yield, and
expected lives of 6 years for both periods. The Company applies Accounting
Principles Board Opinion 25 and related interpretations in accounting for
its plans. Accordingly, no compensation expense has been recognized related
to stock options. If compensation expense was determined based on the fair
value method, the Company's net income and net income per share would have
been reduced to the pro forma amounts indicated below:
1997
-----------
Net Income As reported $ 3,963,665
Pro forma 3,826,775
Basic Earnings Per Share As reported $ 0.56
Pro forma 0.54
Diluted Earnings Per Share As reported $ 0.55
Pro forma 0.53
SFAS No. 123 had no impact on the financial statements for the years ended
December 28, 1996 and December 30, 1995.
The impact of outstanding nonvested stock options granted prior to 1995 have
been excluded from the pro forma calculation. Accordingly, the pro forma
adjustment for 1997 is not indicative of future period pro forma
adjustments.
F-13
<PAGE>
As of December 31, 1997, there were 154,111 shares of common stock under the
Stock Option Plans that were available for future grant.
On December 31, 1997, the Company granted warrants to purchase up to 35,000
shares of its common stock at a price of $12.50 per share to a consultant to
the Company. The Company will record compensation expense of approximately
$275,000 ratably over the two year vesting period of the warrants.
10. COMMITMENTS AND CONTINGENCIES
LEASES
The Company leases its offices, training facilities and certain equipment
under operating and capitalized lease obligations. Operating leases expire
on various dates through 2008. The Company recognizes rent expense on a
straight line basis and records deferred rent based on the difference
between cash paid and straight line expense. Rent expense was $2,741,069,
$1,760,764, and $1,051,396 for 1997, 1996, and 1995, respectively.
Under the terms of the leases, future minimum commitments at December 31,
1997 are as follows:
Year Ending December 31: CAPITAL LEASES OPERATING LEASES
-------------- ----------------
1998 $ 1,590,250 $ 2,251,821
1999 855,782 2,369,419
2000 136,076 2,416,685
2001 23,402 2,457,179
2002 -- 2,097,736
2003 & after -- 5,514,507
------------ -------------
2,605,510 $ 17,107,347
=============
Less: Amount representing interest (255,768)
------------
$ 2,349,742
============
LITIGATION
The Company is involved in various claims and legal actions arising in the
ordinary course of business. In the opinion of management, the ultimate
disposition of these matters will not have a material adverse effect on the
Company's consolidated financial position or results of operations.
11. QUARTERLY FINANCIAL DATA (UNAUDITED)
Summarized quarterly financial data for 1997 and 1996 is as follows (in
thousands except per share data):
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
--------- --------- --------- ---------
YEAR ENDED DECEMBER 31, 1997
- ----------------------------
<S> <C> <C> <C> <C>
Revenues $ 11,969 $ 13,062 $ 13,786 $ 13,816
Operating income 72 463 949 967
Gain from release of certain franchise obligations 2,600 -- -- --
Net income 1,732 454 747 1,030
Basic earnings per share 0.25 0.06 0.11 0.15
Diluted earnings per share 0.24 0.06 0.10 0.14
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
--------- --------- --------- ---------
YEAR ENDED DECEMBER 28, 1996
- ----------------------------
Revenues $ 9,094 $ 10,001 $ 10,484 $ 11,690
Operating income 617 125 490 375
Net income (loss) (444) 490 (6,862) 181
Basic earnings (loss) per share (0.06) 0.07 (1.00) 0.03
Diluted earnings (loss) per share (0.06) 0.07 (0.98) 0.03
</TABLE>
F-14
<PAGE>
12. DISCONTINUED OPERATIONS
On November 4, 1996, the Company signed a definitive agreement to sell its
environmental business. The sale was authorized at a Special Meeting of
Stockholders held on December 20, 1996, and was consummated on December 27,
1996. Under the agreement the Company sold the stock of its environmental
segment which had a net asset value of $10,300,000 for $4,600,000 in cash
and other consideration, including a promissory note and preferred stock in
the amount of $3,700,000 and $2,000,000, respectively. In addition,
immediately prior to the closing, the Company received a dividend of cash,
accounts receivable and other assets owned by the environmental subsidiaries
having a book value of $11,654,000 at December 27, 1996. The Company
incurred a loss of $7,303,000 on the disposal of the segment, consisting
primarily of valuation reserves on the promissory note and preferred stock
of $2,960,000 and $1,600,000, respectively, goodwill write-off of $1,800,000
and transaction costs of approximately $966,000. There is no expected tax
benefit from this loss.
The net assets and results of operations of Handex Environmental, Inc. have
been reflected as discontinued operations in the accompanying consolidated
financial statements. Operating results for 1997 and 1996 for the
discontinued operations were as follows:
1997 1996
------------ ------------
Net operating revenues $ -- $ 44,281,046
============ ============
Income (loss) before income taxes $ 349,055 $ (7,348,458)
Income taxes -- 84,583
------------ ------------
Net income (loss) $ 349,055 $ (7,433,041)
============ ============
In December 1997 the Company received $2,000,000 from ECB, Inc. in
redemption of the 2,000 shares of Series A Preferred Stock which had a
stated value of $1,000 per share. In 1996 the Company had established a
valuation reserve of $1,600,000 against the face amount of the Preferred
Stock which it reversed upon the receipt of the redemption proceeds. Upon
further analysis of the remaining assets and liabilities of the
environmental business, the Company recorded an additional provision of
$1,251,000 to reflect the expected realization value of those assets and
liabilities. As a result of the redemption of the Series A Preferred Stock
ECB, Inc. was also able to redeem at no cost the six-year warrant to acquire
300,000 common shares of ECB at a price of $1.32 per share and the six-year
warrant to acquire 85,000 common shares of ECB at a price of $1.60 per
share. The Company, in 1996, ascribed no value to the warrants so the
redemption in 1997 had no effect on its financial results.
F-16
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
DIRECTORS
The information required by this Item 10 as to the Directors of the Company is
incorporated herein by reference to the information set forth under the caption
"Election of Directors" in the Company's definitive Proxy Statement for the
Annual Meeting of Stockholders to be held on May 5, 1998, since such Proxy
Statement will be filed with the Securities and Exchange Commission not later
than 120 days after the end of the Company's fiscal year pursuant to Regulation
14A. Information required by this Item 10 as to the executive officers of the
Company is included in Part I of this Annual Report on Form 10-K.
EXECUTIVE OFFICERS OF THE REGISTRANT*
The following is a list of the executive officers of the Company. The executive
officers are elected each year and serve at the pleasure of the Board of
Directors.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Curtis Lee Smith, Jr. 70 Chairman of the Board and Chief Executive Officer
Thomas J. Bresnan 45 President and Chief Operating Officer
Stuart O. Smith 65 Vice Chairman of the Board and Secretary
Robert S. McMillan 46 Vice President, Treasurer and Chief Financial
Officer
Charles G. Kinch 44 President and Chief Operating Officer - New Horizons
Computer Learning Centers Inc.
Kenneth M. Hagerstrom 39 President - Company-owned Center Division
</TABLE>
*The description of executive officers called for in this Item is included
pursuant to Instruction 3 to Section (b) of Item 401 of Regulation S-K.
Set forth below is a brief description of the background of those executive
officers of the Company who are not Directors of the Company. Information with
respect to the background of those executive officers who are also Directors of
the Company is incorporated herein by reference as set forth in Part III, Item
10, of the Company's Annual Report on Form 10-K.
17
<PAGE>
CHARLES G. KINCH was named President and Chief Operating Officer of New Horizons
Computer Learning Centers, Inc., a subsidiary of the Company, in May 1995.
Before then, from 1992 to 1995, he was President of Paragon Retailers Systems,
Boca Raton, Florida. From 1989 to 1992, he was Vice President for Marketing and
Operations, Tandem Source Company, Tandem Computers, Cupertino, California. From
1983 to 1989, he was with ComputerLand Corporation, Hayward California,
beginning as Vice President of Products, and then being promoted to General
Manager of ComputerLand Operated Stores, Inc., and President of ComputerLand
Franchise Holding Corp., both based in Hayward, California.
ROBERT S. MCMILLAN was named Vice President, Chief Financial Officer and
Treasurer of the Company in August 1997. He served as Chief Financial Officer of
New Horizons Computer Learning Centers, Inc. beginning in 1995 and became a
Senior Vice President in January 1997. From 1992 to 1995, Mr. McMillan was Chief
Financial Officer of ZNYX Corporation, Fremont California. From 1990 to 1992, he
was Chairman, Chief Executive Officer and Chief Financial Officer of Omnivar,
Burbank, California.
KENNETH HAGERSTROM was named President of the Company-owned Center Division of
New Horizons in November 1997. From June 1997 until November 1997 Mr. Hagerstrom
was the Director of Field Support for New Horizons Computer Learning Centers,
Inc. From October 1995 to June 1997 he was General Manager of the company-owned
center in New York, NY. He originally joined New Horizons network in 1994 at the
Boston, MA franchise as an Account Executive and was promoted in 1995 to Sales
Manager. Before then, from 1982 to 1994, Mr. Hagerstrom was President of KMS
Enterprises of Boston, MA.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 is incorporated by reference to the
information set forth under the caption "Compensation of Directors and Executive
Officers" in the Company's definitive Proxy Statement for the Annual Meeting of
Stockholders to be held on May 5, 1998, since such Proxy Statement will be filed
with the Securities and Exchange Commission not later than 120 days after the
end of the Company's fiscal year pursuant to Regulation 14A.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item 12 is incorporated by reference to the
information set forth under the caption "Share Ownership of Principal Holders
and Management" in the Company's definitive Proxy Statement for the Annual
Meeting of Stockholders to be held on May 5, 1998, since such Proxy Statement
will be filed with the Securities and Exchange Commission not later than 120
days after the end of the Company's fiscal year pursuant to Regulation 14A.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item 13 is incorporated by reference to the
information set forth under the caption "Certain Transactions" in the Company's
definitive Proxy Statement for the Annual Meeting of Stockholders to be held on
May 5, 1998, since such Proxy Statement will be filed with the Securities and
Exchange Commission not later than 120 days after the end of the Company's
fiscal year pursuant to Regulation 14A.
18
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1) FINANCIAL STATEMENTS
The following Consolidated Financial Statements of the Registrant and
its subsidiaries are included in Part II, Item 8:
PAGE
----------
Reports of Independent Auditors F-1 to F-2
Consolidated Balance Sheets F-3
Consolidated Statements of Operations F-4
Consolidated Statements of Stockholders' Equity F-5
Consolidated Statements of Cash Flows F-6
Notes to Consolidated Financial Statements F-7 to F-15
(a) (2) FINANCIAL STATEMENTS SCHEDULES
The following Consolidated Financial Statement Schedules of the
Registrant and its subsidiaries are included in Item 14 hereof:
PAGE
----
Schedule II Valuation and Qualifying Accounts
and Reserves 21
All other schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
(a) (3) EXHIBITS
Reference is made to the Exhibit Index at sequential page 22 hereof.
19
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized at Morganville, New Jersey
this 27th day of March, 1998.
NEW HORIZONS WORLDWIDE, INC.
By: /s/CURTIS LEE SMITH, JR.
----------------------------
Curtis Lee Smith, Jr., Chairman
and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/CURTIS LEE SMITH, JR. Chairman, and )
- ------------------------ Chief Executive Officer )
Curtis Lee Smith, Jr. (Principal Executive Officer) )
)
)
)
)
)
/s/ROBERT S. MCMILLAN Vice President, Treasurer and )
- ----------------------- Chief Financial Officer )
Robert S. McMillan (Principal Financial and )
Accounting Officer) )
)
)
)
)
/s/STUART O. SMITH Director )
- ----------------------- )
Stuart O. Smith )
)
)
) March 27, 1998
/s/THOMAS J. BRESNAN Director )
- ---------------------- )
Thomas J. Bresnan )
)
)
)
/s/DAVID A. GOLDFINGER Director )
- ---------------------- )
David A. Goldfinger )
)
)
)
/s/RICHARD L. OSBORNE Director )
- ---------------------- )
Richard L. Osborne )
)
)
)
/s/SCOTT R. WILSON Director )
- ---------------------- )
Scott R. Wilson )
)
)
)
/s/WILLIAM H. HELLER Director )
- ----------------------- )
William H. Heller )
)
)
)
20
<PAGE>
SCHEDULE II
NEW HORIZONS WORLDWIDE, INC. AND SUBSIDIARIES
Valuation and Qualifying Accounts and Reserves
Years ended December 31, 1997, December 28, 1996, and December 30, 1995
ALLOWANCE
FOR DOUBTFUL
ACCOUNTS
------------
Balance at January 1, 1995 $ 934,560
Additions - Charged to costs and expenses 400,375
Deductions (A) (353,190)
-----------
Balance at December 30, 1995 981,745
Additions - Charged to costs and expenses 1,048,210
Deductions (A) (419,101)
-----------
Balance at December 28, 1996 1,610,854
Additions - Charged to costs and expenses 670,375
Deductions (A) (588,542)
-----------
Balance at December 31, 1997 $ 1,692,687
===========
(A) - Accounts charged off, less recoveries
21
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
PAGINATION
BY
SEQUENTIAL
EXHIBIT EXHIBIT NUMBERING
NUMBER DESCRIPTION SYSTEM
- ------ ----------- -----------
<S> <C> <C>
3.1 Amended Certificate of Incorporation of the Registrant (1)
3.2 By-laws of the Registrant (1)
3.3 Amendment to Certificate of Incorporation of the Registrant (15)
4.1 Specimen Certificate for Share of Common Stock, $.01 par value, of the
Registrant *
4.2 Secured Straight Line of Credit, guaranteed by the Registrant (15)
4.3 Secured Revolving Line of Credit, guaranteed by the Registrant (15)
10.1 Key Employees Stock Option Plan of the Registrant (1)
10.2 Amendment No. 1 to the Key Employees Stock Option Plan of the Registrant
(7)
10.3 New Horizons Education Corporation 401(k) Profit Sharing and Trust Plan
(13)
10.4 Amendment No. 1 New Horizons Education Corporation 401(k) Profit Sharing
and Trust Plan (15)
10.5 Amendment No. 2 New Horizons Education Corporation 401(k) Profit Sharing
and Trust Plan (15)
10.6 Amendment No. 3 New Horizons Education Corporation 401(k) Profit Sharing
and Trust Plan (15)
10.7 Form of Stock Option Agreement executed by recipients of options under
Key Employees Stock Option Plan (6)
10.8 Stock Option Agreement dated August 6, 1992, between the Registrant and
Thomas J. Bresnan (7)
10.9 Outside Directors Stock Option Plan of the Registrant (1)
10.10 Amendment No. 1 to the Outside Directors Stock Option Plan of the
Registrant (7)
10.11 Form of Stock Option Agreement executed by recipients of options under
the Outside Directors Stock Option Plan (7)
10.12 Form of Indemnity Agreement with Directors and Officers of the Registrant
(6)
10.13 Lease Agreement dated March 25, 1991, between Handex of New England, Inc.
and Metro Park Marlboro Realty Trust, as amended, guaranteed by the
Registrant (6)
10.14 Lease Agreement dated March 1, 1995, between New Horizons Computer
Learning Center of Metropolitan New York, Inc. and Mid City Associates,
guaranteed by the Registrant (10)
22
<PAGE>
EXHIBIT INDEX
PAGINATION
BY
SEQUENTIAL
EXHIBIT EXHIBIT NUMBERING
NUMBER DESCRIPTION SYSTEM
- ------ ----------- -----------
<C> <C> <C>
10.15 Lease Agreement dated February 24, 1995, between New Horizons Computer
Learning Center of Cleveland LTD., LLC, and Realty One Property
Management, guaranteed by the Registrant (10)
10.16 Warrants for the purchase of 25,000 shares of Common Stock, $.01 par
value per share, of the Registrant issued to The Nassau Group, Inc. -
December 17, 1993 (10)
10.17 Warrants for the purchase of 35,000 shares of Common Stock, $.01 par
value per share, of the Registrant issued to The Nassau Group, Inc. -
December 31, 1997*
10.18 Lease Agreement dated April 5, 1995, between New Horizons Computer
Learning Center of Chicago, Inc. and the Equitable Life Assurance of the
United States(12)
10.19 Lease Agreement dated March 7, 1996, between New Horizons Computer
Learning Centers, Inc. and Mani Brothers, LLC (13)
10.20 Stock Purchase Agreement dated November 4, 1996, between the Registrant
and ECB, Inc. and certain exhibits thereto(14)
10.21 Lease Agreement dated September 29, 1996, between New Horizons Computer
Learning Center of Metropolitan New York, Inc. and JMB-40 Broad Street
Associates.*
21.1 Subsidiaries of the Registrant*
27.0 Financial Data Schedule*
99.1 Directors and Officers and Company Indemnity Policy(5)
<FN>
---------------
(1) Incorporated herein by reference to the appropriate exhibits to the
Registrant's Registration Statement on Form S-1 (File No. 33-28798).
(2) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1989.
(3) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report on Form 10-Q for the period ended March 31,
1990.
(4) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report or Form 10-Q for the period ended June 30,
1990
(5) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1990.
(6) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1991.
(7) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December
31,1992.
(8) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report on Form 10-Q for the period ended July 3,
1993.
(9) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended January 1,
1994.
(10) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Form 8-K dated August 15, 1994.
(11) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1994.
23
<PAGE>
(12) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report on Form 10-Q for the period ended April 1,
1995.
(13) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 30,
1995.
(14) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Quarterly Report on Form 10-Q for the period ended September
28, 1996.
(15) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 28,
1996.
* Filed herewith.
</FN>
</TABLE>
24
EXHIBIT 4.1
NUMBER New Horizons SHARES
2225 --------------- SPECIMEN
Worldwide, Inc.
Incorporated under the laws of the State of Delaware
THIS CERTIFICATE NEW HORIZONS WORLDWIDE, INC.
IS TRANSFERABLE
EITHER IN CHICAGO, IL.
OR IN NEW YORK, N.Y. CUSIP 645526 10 4
THIS CERTIFIES THAT SPECIMEN IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF
$.01 EACH OF THE COMMON STOCK OF
NEW HORIZONS WORLDWIDE, INC.
TRANSFERABLE ONLY ON THE BOOKS OF THE CORPORATION BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON
SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF
ITS DULY AUTHORIZED OFFICERS.
DATED
NEW HORIZONS WORLDWIDE, INC.
CORPORATE
/s/ Stuart O. Smith SEAL /s/ Curtis Lee Smith
Secretary DELAWARE Chairman
SEE REVERSE FOR CERTAIN DEFINITIONS
COUNTERSIGNED AND REGISTERED
HARRIS TRUST AND SAVINGS BANK
BY TRANSFER AGENT AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT- ________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act__________________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
--------------------
FOR VALUE RECEIVED,________________________HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
___________________________________________________________________OF THE SHARES
REPRESENTED BY THE WITHIN CERTIFICATE AND DO HEREBY IRREVOCABLY CONSTITUTE
AND APPOINT
________________________________________________________________________ATTORNEY
TO TRANSFER THE SAID SHARES ON THE BOOKS OF THE WITHIN NAMED COMPANY
WITH FULL POWER OF SUBSTITUTION IN THE PREMISES.
DATED:________________ 19 ___________
________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT, OR ANY CHANGE WHATEVER.
EXHIBIT 10.17
THESE WARRANTS, AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS THE SAME ARE REGISTERED IN ACCORDANCE WITH SAID ACT, OR
IT IS ESTABLISHED TO THE SATISFACTION OF THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m., New York, New York Time,
on February 21, 2004
WARRANTS FOR THE PURCHASE OF
35,000 SHARES OF COMMON STOCK, $.01 PAR VALUE PER SHARE
OF
NEW HORIZONS WORLDWIDE, INC.
This Is To Certify That, FOR VALUE RECEIVED, The Nassau Group, Inc., or
its successors and permitted assigns ("Holder"), is entitled to purchase,
subject to the provisions of these Warrants, from New Horizons Worldwide, Inc.,
a Delaware corporation ("Company"), Thirty-Five Thousand (35,000) duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock,
$.01 par value per share, of the Company ("Common Stock"), at Twelve Dollars and
Fifty Cents ($12.50) per share, at any time or from time to time during the
period from December 31, 1997 to February 21, 2004 (subject to the vesting
provisions set forth below), but not later than 5:00 p.m., New York, New York
time on February 21, 2004. The number of shares of Common Stock which the Holder
is entitled to purchase upon the exercise of each Warrant and the exercise price
to be paid for each share of Common Stock may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, as adjusted from time to time, are hereinafter sometimes referred to
as "Warrant Shares" and the exercise price for one (1) Warrant Share in effect
at any time and as adjusted from time to time is hereinafter sometimes referred
to as the "Exercise Price".
1. EXERCISE OF WARRANTS.
Holder shall become entitled to exercise the Warrant with respect to the
aggregate number of Warrant Shares indicated below on or after the date
indicated opposite such number below:
AGGREGATE NUMBER OF DATE BEGINNING
WARRANT SHARES AS TO WHICH ON WHICH WARRANT
WARRANT MAY BE EXERCISED MAY BE EXERCISED
-------------------------- ----------------
17,500 January 1, 1998
26,250 January 1, 1999
35,000 January 1, 2000
<PAGE>
If these Warrants shall be exercised on any day on which banking institutions in
the State of New York are authorized or required by law to close, then these
Warrants shall be deemed exercised on the next succeeding day which shall not be
such a day. These Warrants may be exercised by presentation and surrender hereof
to the Company at its principal office (or to the stock transfer agent, if any,
of the Company at its office), with the Purchase Form annexed hereto duly
executed and accompanied by payment of the aggregate Exercise Price for the
number of Warrant Shares specified in such Purchase Form. The aggregate Exercise
Price for such Warrant Shares may be tendered to the Company in cash, by
certified check or bank draft, by conversion of any indebtedness outstanding at
such time of the Company to the Holder, if the Common Stock is then publicly
traded, in Warrants (valued for this purpose at their fair market value
determined as provided in subparagraph (b) below), or by any combination
thereof. Any request for exercise must be accompanied by such investment
representations as are reasonably requested by the Company. As soon as
practicable after each such exercise of a Warrant, but not later than 30 days
from the date of such exercise, the Company shall issue and deliver to the
Holder a certificate or certificates for the Warrant Shares issuable upon such
exercise, in such denomination or denominations and registered in such name or
names as the Holder shall have specified in the Purchase Form; provided, that if
a certificate or certificates for Warrant Shares are to be registered in a name
or names other than the name of the Holder, and the transfer of such Warrant
Shares is not made pursuant to a registration statement under the Securities Act
of 1933, as amended (the "Securities Act"), the Holder shall deliver to the
Company a legal opinion reasonably satisfactory to the Company to the effect
that such transfer is not required to be registered under the Securities Act. If
these Warrants should be exercised in part only, the Company shall, upon
surrender of these Warrants for cancellation, execute and deliver new Warrants
substantially in the form hereof evidencing the rights of the Holder thereof to
purchase the balance of the Warrant Shares covered by these Warrants. Upon
receipt by the Company of these Warrants at its office, or by the stock transfer
agent of the Company at its office, in proper form for exercise, the Holder or
its designee shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be physically delivered to the Holder or
its designee.
(b) Payment for the Exercise Price tendered in Warrants under
subparagraph (a) above in lieu of any cash payment required thereunder shall be
by presentation and surrender of such Warrants. The number of Warrant Shares
delivered in exchange therefor shall be equal to (i) the excess of (A) the
product of (x) the maximum number of Warrant Shares deliverable upon exercise of
such Warrants and (y) the average closing price per share of the Common Stock on
the principal exchange on which the Common Stock is traded for the trading days
(during which the Common Stock actually traded) during the 90-day period
preceding the date of exercise or, if the Common Stock is not traded on an
exchange, the average closing price per share of the Common Stock in the
over-the-counter market for the trading days (during which the Common Stock
actually traded) during the 90-day period preceding the date of exercise over
(B) the product of (x) the maximum number of Warrant Shares deliverable upon
exercise of such Warrants and (y) the Exercise Price DIVIDED BY (ii) the average
closing price per
<PAGE>
share of the Common Stock determined in accordance with clause (i)(A)(y) above.
2. RESERVATION OF SHARES. The Company shall at all times reserve and keep
available, free from preemptive rights, for issuance and/or delivery upon
exercise of these Warrants, such number of shares of its duly authorized and
unissued Common Stock, as shall be required for issuance and delivery of Warrant
Shares upon exercise in full of all outstanding Warrants. All shares of Common
Stock which are so issuable shall, when issued, be duly and validly issued,
fully paid and non-assessable and free from all taxes, liens and charges.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of these Warrants. In lieu
of issuing a fraction of a share, the number of Warrant Shares to be received
upon any exercise shall be rounded up to the next whole share.
4. ASSIGNMENT OR LOSS OF WARRANT. These Warrants are not assignable
without the prior written consent of the Company, except that the Holder may
assign these Warrants, in whole or in part, to any affiliate of the Holder
without the consent of the Company. Further, any assignee of such Warrants
(except for affiliates of the Holder) shall provide the Company with such
investment representations as the Company may reasonably request and the Holder
shall provide the Company with a legal opinion reasonably satisfactory to the
Company that such transfer may be effected without registration under the
Securities Act. Subject to the Company's consent and receipt of the foregoing
(if required), upon surrender of these Warrants to the Company at its principal
office or at the office of its stock transfer agent, if any, with an Assignment
Form reasonably acceptable to the Company duly executed and funds sufficient to
pay any transfer tax, the Company shall, without charge to the assignor or the
assignee, execute and deliver a new Warrant or Warrants of like tenor as these
Warrants in the name or names of the assignee or assignees and in the
denomination or denominations specified in such instrument of assignment, and
these Warrants shall promptly be canceled. If less than all of these Warrants
are being assigned, new Warrants of like tenor as these Warrants shall be issued
and delivered to the Holder hereof for the portion of these Warrants not being
assigned.
Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of these Warrants, and (in the case of loss,
theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of these Warrants, if mutilated, the Company will
execute and deliver new Warrants of like tenor and date exercisable for an
equivalent number of shares of Common Stock.
5. RIGHTS OF THE HOLDER. The Holder shall not by virtue hereof be entitled
to any rights as a shareholder of the Company, either at law or in equity, and
the rights of the Holder are limited to those expressed or incorporated in these
Warrants and are not enforceable against the Company except to the extent set
forth or incorporated herein.
6. ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time and
the number and kind of securities purchasable upon the exercise
<PAGE>
of the Warrants shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares, the Exercise Price shall
be adjusted, effective immediately after the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification, to a price determined by multiplying the Exercise Price in
effect immediately prior to such record date or effective date by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
immediately before giving effect to such dividend, distribution, subdivision,
combination or reclassification, and the denominator of which shall be the
number of shares of Common Stock outstanding after giving effect to such
dividend, distribution, subdivision, combination or reclassification.
(b) Whenever the Exercise Price payable upon exercise of a Warrant
is adjusted pursuant to subparagraph (a) above, the number of Warrant Shares
purchasable upon exercise of a Warrant shall simultaneously be adjusted by
multiplying the number of Warrant Shares purchasable immediately prior to any
adjustment by the Exercise Price in effect immediately prior to any adjustment
and dividing the product so obtained by the Exercise Price as adjusted.
(c) The provisions of this paragraph 6 shall not apply to (i) the
issue, sale, distribution or grant of any shares of Common Stock, any rights,
warrants or options to subscribe for or purchase shares of Common Stock or any
securities convertible into or exchangeable for shares of Common Stock to
officers, directors or employees of the Company pursuant to a compensation plan
that currently exists and has been, or in the future may exist and will be,
approved by the stockholders of the Company or (ii) the issuance of shares of
Common Stock to officers, directors or employees of the Company upon any
exercise of rights, warrants or options, or any conversion or exchange of
convertible or exchangeable securities, described in clause (i) above. No
adjustment to the Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least five cents ($.05) in such price;
PROVIDED, HOWEVER, that any adjustments which by reason of this subparagraph (h)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment made under this paragraph 6. All calculations under
this paragraph 6 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. Anything in this paragraph 6 to
the contrary notwithstanding, the Company shall be entitled, but shall not be
required, to reduce the Exercise Price, in addition to those required reductions
by this paragraph 6, as it shall determine, in its sole discretion, to be
advisable in order that any dividend or distribution in shares of Common Stock,
or any subdivision, reclassification or combination of Common Stock, hereafter
made by the Company shall not result in any federal income tax liability to the
holders of Common Stock or securities convertible into Common Stock (including
Warrants).
<PAGE>
(d) Whenever the Exercise Price is adjusted as herein provided, the
Company shall promptly cause a notice setting forth the adjusted Exercise Price
and adjusted number of Warrant Shares issuable upon exercise of a Warrant to be
mailed to the Holder, at its last address appearing in the Warrant Register (as
hereinafter defined), and shall cause a certified copy thereof to be mailed to
the Company's stock transfer agent, if any. The Company may retain a firm of
nationally recognized independent certified public accountants selected by the
Board of Directors (who may be the regular accountants employed by the Company)
to make any computation required by this paragraph 6, and a certificate signed
by such firm shall be conclusive evidence of the correctness of such adjustment.
(e) In the event that at any time, as a result of an adjustment made
pursuant to subparagraphs (a) and (b) above, the Holder of a Warrant thereafter
shall become entitled to receive any shares of the Company other than Common
Stock, thereafter the number of such other shares so receivable upon exercise of
a Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in subparagraphs (a) and (b).
(f) Irrespective of any adjustments in the Exercise Price or the
number or kind of Warrant Shares purchasable upon exercise of a Warrant,
Warrants issued in substitution or replacement of these Warrants may continue to
express the same Exercise Price and number and kind of Warrant Shares as are
stated in such substituted or replaced Warrants.
(g) As a condition precedent to the taking of any action which would
require an adjustment pursuant to this paragraph 6, the Company shall take any
action which may be necessary in order that the Company may thereafter validly
and legally issue as fully paid and nonassessable all Warrant Shares which the
Holder of these Warrants is entitled to receive upon the exercise thereof.
(h) In case of any consolidation or merger to which the Company is a
party, other than a consolidation or merger in which the Company is a continuing
corporation and which does not result in any reclassification or conversion of,
or change in, the outstanding shares of Common Stock, or any sale or conveyance
of the property of the Company as an entirety or substantially as an entirety
(any such event being called a "Capital Reorganization") the Company shall cause
effective provisions to be made so that the Holder shall have the right
thereafter by exercising these Warrants at any time prior to their expiration,
to receive (in lieu of the number of shares of Common Stock theretofore
deliverable) cash in an amount per share of Common Stock equal to the excess, if
any, of (x) the fair market value per share of Common Stock of the consideration
received in the Capital Reorganization over (y) the Exercise Price.
7. REGISTRATION RIGHTS
(a) Upon a written request to register all, but not less than all,
of the Warrant Shares issued or issuable upon exercise of all of these Warrants
pursuant to the Securities Act from the holders thereof, the Company will use
its best efforts to register all such Warrant Shares pursuant to Form S-8
promulgated under such Securities Act or any similar
<PAGE>
registration statement then available ("S-8 Registration"). In the event the
Company is unable to register all of the Warrant Shares on such form, then upon
the request of the holder to register all, but not less than all, of the Warrant
Shares, it shall use its best efforts to cause such shares to be registered for
resale by the holder thereof on Form S-3 or any other registration form then
available ("S-3 Registration"). The Company hereby agrees to use its best
efforts to continue to qualify for the use of Form S-3.
(b) If and whenever one or more holders of these Warrants and any
Warrant Shares have requested pursuant to the provisions of subparagraph (a)
above that the Company effect the registration of all of the Warrant Shares
under the Securities Act, the Company will:
(1) prepare and file with the SEC at the earliest practicable
date the appropriate registration statement with respect to such Warrant Shares
and use all reasonable efforts to cause such registration statement to become
effective as soon as practicable thereafter and to remain effective for such
period as may be reasonably necessary to effect the sale of the Warrant Shares,
but in any event no longer than three years from the date of issuance of the
Warrant Shares in the case of an S-3 Registration;
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and to the prospectus contained
therein as may be reasonably necessary to keep such registration statement
effective for such period set forth in subparagraph (1) above, and to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(3) use all reasonable efforts to (i) register or qualify the
Warrant Shares, concurrently with the effectiveness of the registration
statement, under the Blue Sky or securities laws of any jurisdiction such holder
thereof reasonably requests, and (ii) do any and all other acts and things which
may be reasonably necessary or advisable to enable such holders to consummate
the disposition in such jurisdictions of the Warrant Shares in compliance with
such laws; PROVIDED, that the Company will not be required to (x) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (y) subject itself to taxation in
any jurisdiction in which it is not otherwise so subject or (z) file any general
consent to service of process in any such jurisdiction;
(4) furnish to the holders who participate in such
registration such number of copies of the registration statement, each amendment
and supplement thereto, the preliminary prospectus, the final prospectus and
such other documents as such holders may reasonably request in order to
facilitate the public offering of such Warrant Shares;
(5) notify the holders who participate in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed;
<PAGE>
(6) notify any seller or sellers of Warrant Shares covered by
such registration statement, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances then existing, not misleading and at the request
of such seller or sellers, prepare and furnish to such seller or sellers a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of the Warrant Shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances then existing, not misleading; and
(7) with respect to an S-3 Registration, furnish, at the
request of any holder or holders who participate in such registration, on the
date that the registration statement with respect to such Warrant Shares becomes
effective, (i) an opinion, dated such date, of counsel representing the Company
for the purpose of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
holder or holders making such request; and (ii) a letter dated such date, from a
firm of nationally recognized independent certified public accountants which
represents the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the holder or holders making such request (subject
to any applicable limitations and requirements including, without limitation,
any certification requirements from the holder or holders participating in such
registration in Statement on Auditing Standards No. 72, or any successor
statement, as published by American Institute of Certified Public Accountants,
Inc.).
(c) Notwithstanding anything contained herein to the contrary, the
Company shall not be obligated to use its best efforts to have more than one
registration statement declared effective under the Securities Act pursuant to
these Warrants.
(d) (1) With respect to an S-8 Registration the Company shall bear
all of the following fees, costs and expenses (collectively "Registration
Expenses"): all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel for the Company and all independent accountants for the
Company, underwriters (excluding discounts and commissions) and other persons
retained by the Company, messenger and delivery fees, transfer agent and
registrar fees and expenses, and the expenses and fees for any listing of the
securities to be registered on each securities exchange (or NASDAQ) on which
similar securities issued by the Company are then listed; and expenses and fees
incurred in connection with registration or qualification of the Warrant Shares
under Blue Sky or securities laws of the jurisdictions specified by the holders
thereof pursuant to subparagraph (b)(3) above.
<PAGE>
(2) With respect to an S-3 Registration, the Company shall
bear the first Ten Thousand Dollars ($10,000.00) of Registration Expenses and
one-half (1/2) of such expenses in excess of such amount, but in no event more
than Twenty-Five Thousand Dollars ($25,000.00) in the aggregate.
(e) (1) The Company will indemnify and hold harmless each holder
of Warrant Shares participating in a registration pursuant to these provisions,
and each broker or any other person acting on behalf of such holder and each
person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act, from and against any and all loss, claim, damage, liability,
cost or expense to which any of the foregoing persons may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities, costs or expenses are caused by, are based upon, or arise out of
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or any document furnished or prepared by the
Company incident to the registration or qualification of the Warrant Shares
pursuant to this paragraph 7 or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or any violation by the Company of the Securities Act or state
securities or Blue Sky laws applicable to the Company or relating to action or
inaction required of the Company in connection with such registration or
qualification under such state securities or Blue Sky laws; and shall reimburse
such holder, such broker or other person acting on behalf of such holder and
each controlling person for any legal or any other expenses reasonably incurred
by any of them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in strict
conformity with written information furnished by such holder, such broker, such
other person acting on behalf of such holder or such controlling person
specifically for use in the preparation of such documents.
(2) Each holder participating in a registration hereunder will
indemnify and hold harmless the Company, and its officers, directors and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any and all loss, claim, damage, liability, cost or
expense to which the Company or such officer, director or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment or
supplement thereto, or any document furnished or prepared by the Company
incident to the registration or qualification of the Warrant Shares pursuant to
this paragraph 7 or the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
but only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was so made in reliance upon and in strict
<PAGE>
conformity with written information furnished by such holder specifically for
use in the preparation of such documents.
(3) Each party entitled to indemnification under this
subparagraph (d) (the "Indemnified Party") shall give notice to the party that
allegedly is obligated hereunder to indemnify the Indemnified Party (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom; PROVIDED, HOWEVER, that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have been
advised by counsel that actual or potential differing interests or defenses
exist or may exist between the Indemnifying Party and the Indemnified Party, in
which case such expense shall be paid by the Indemnifying Party); and PROVIDED
FURTHER that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
subparagraph (d). No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(f) Notwithstanding anything to the contrary contained herein, the
holders of Warrant Shares shall have no registration rights hereunder with
respect to any proposed sale of Warrant Shares if an exemption from registration
pursuant to Rule 144(k) promulgated under the Securities Act is available for
the offer and sale of all of the Warrant Shares proposed to be sold.
8. MISCELLANEOUS
(a) All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex or cable communication) and
shall become effective (i) when personally delivered on a business day during
normal business hours at the place of receipt to the party to be given such
notice, (ii) on the third business day following the day when deposited, if
mailed by certified or registered mail with return receipt requested and postage
thereon fully prepaid, (iii) on the business day following the day when
deposited if sent by overnight courier, fully prepaid, or (iv) on the business
day such notice shall have been sent by telex, telegram, telecopier, cable or
similar electronic device, fully prepaid. The addresses for such notice shall
be:
if to the Company, to:
New Horizons Worldwide, Inc.
500 Campus Drive
P.O. Box 451
Morganville, New Jersey 07751
Attention: Chief Financial Officer
<PAGE>
if to the Holder, to:
The Nassau Group, Inc.
18 Kings Highway North
Westport, Connecticut 06880
Attention: J. Francis Lavelle
or at such other address as any of the foregoing parties shall from time to time
designate in writing to the other party in accordance herewith.
(b) No failure or delay of the Holder in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof, or any abandonment or discontinuance of steps to
enforce such a right, power or privilege, preclude any other further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies of the Holder are cumulative and not exclusive of any rights or
remedies which it would otherwise have. The provisions of these Warrants may be
amended, modified or waived if, but only if, such amendment, modification or
waiver is in writing and is signed by the Holders of a majority of the Warrants
outstanding; PROVIDED, that no amendment, modification or waiver may change the
Exercise Price or the number of Warrant Shares subject to purchase upon exercise
of each Warrant (including without limitation any adjustments or any provisions
with respect to adjustments or the manner of exercise) without the consent in
writing of all of the Holders of the Warrants outstanding.
(c) All covenants, agreements and provisions of these Warrants by or
for the benefit of the Company shall bind and inure to the benefit of its
successors and assigns hereunder.
(d) THESE WARRANTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, New Horizons Worldwide, Inc. has caused this Warrant
to be manually executed by its duly authorized President and attested by its
duly authorized Secretary.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ THOMAS J. BRESNAN
--------------------------------
Thomas J. Bresnan, President
Dated: December 31, 1997
Attest:
- ---------------------------------
<PAGE>
PURCHASE FORM
Dated: ______________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrants to the extent of purchasing Warrant Shares and hereby tenders payment
of the aggregate Exercise Price therefor by the following means:
_____________________________________. Any cash payments to be made in lieu of
issuing fractional shares should be payable to the order of the undersigned and
delivered at the indicated address.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name ___________________________________________________________________________
(Please typewrite or print in block letters)
Address ________________________________________________________________________
Signature __________________________________________
Address ____________________________________________
EXHIBIT 10.21
EXHIBIT A
Execution Copy
JMB - 40 BROAD STREET ASSOCIATES,
LANDLORD
and
NEW HORIZONS COMPUTER LEARNING CENTER
OF METROPOLITAN NEW YORK, INC.
TENANT
-------------------------------
LEASE
------------------------------
DEMISED PREMISES:
40 BROAD STREET
ENTIRE 3RD FLOOR
NEW YORK, NEW YORK
<PAGE>
TABLE OF CONTENTS
ARTICLE PAGE
- ------- ----
1 BASIC LEASE PROVISIONS 1
2 TERM PREPARATION AND POSSESSION OF DEMISED PREMISES 3
3 USE 4
4 FIXED RENT 4
5 TAXES 5
6 OPERATING EXPENSES 7
7 ELECTRICITY 11
8 LANDLORD'S PROPERTY, TENANT'S PROPERTY 12
9 REPAIRS, ALTERATIONS AND LIENS 13
10 COMPLIANCE WITH LAWS 15
11 ASSIGNMENT, SUBLETTING, MORTGAGING 16
12 INSURANCE 22
13 DAMAGE OR DESTRUCTION 23
14 LANDLORD'S LIABILITY 25
15 CONDEMNATION 26
16 CONDITIONS OF LIMITATION 77
17 RE-ENTRY BY LANDLORD 29
18 LANDLORD'S REMEDIES, DAMAGES 30
19 SERVICES AND EQUIPMENT 32
20 ACCESS; RIGHT TO CHANGE PUBLIC PORTIONS OF BUILDING 34
21 BROKER 35
22 SUBORDINATION 35
23 LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL 36
<PAGE>
SECTION PAGE
- ------- ----
24 ESTOPPEL CERTIFICATE 36
25 SURRENDER OF DEMISED PREMISES 37
26 NOTICES 38
27 SECURITY DEPOSIT 39
28 COVENANT OF QUIET ENJOYMENT 39
29 PARTNERSHIP TENANT 39
30 MISCELLANEOUS 41
31 RENEWAL OPTION 42
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EXHIBITS
- --------
A FLOOR PLAN
A-l LANDLORD'S WORK
B CLEANING SCHEDULE
C RULES AND REGULATIONS
D GUARANTY OF LEASE
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<PAGE>
THIS LEASE is made as of the 29th day of September, 1996, between JMB-40
Broad Street Associates, c/o Heitman Properties of New York Ltd., 40 Broad
Street, New York, New York 10004 ("Landlord") and New Horizons Computer Learning
Center of Metropolitan New York, Inc., a Delaware corporation. having an address
at One Penn Plaza, New York, New York 10119 ("Tenant").
WITNESSETH:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
The Building: 40 Broad Street
New York, New York
The Land: The land upon which the Building is located.
Demised Premises: The entire rentable area of the 3rd floor of the
Building consisting of 14,614 square feet as shown
by hatching on the Floor plan attached hereto as
Exhibit A and made a part hereof.
Commencement Date: That date which is the earlier to occur of: (a) the
date Tenant takes possession of all or any portion
of the Demised Premises, or (b) ten'(l0) days after
notice of substantial completion of Landlord's Work
as determined by execution and delivery of an
American Institute of Architects certificate of
substantial completion certified by the architect
of record.
Expiration Date: That date which is the last day of the calendar
month in which the 11th anniversary of the
Commencement Date occurs.
Landlord's Work: The work described on EXHIBIT A-1 attached hereto
and made a part hereof. Landlord has made and makes
no representations as to the date on which it will
complete Landlord's Work and Landlord shall be
under no penalty or liability to Tenant whatsoever
by reason of any delay in such performance and this
Lease and the Commencement Date shall not be
affected thereby. If, for any reason whatsoever,
landlord's Work is not substantially completed by
the Commencement Date, then Landlord shall be
entitled to have access to the Demised Premises to
complete Landlord's Work and the payment of Fixed
Rent and additional rent shall not be affected
thereby.
Rent Abatement: First twelve (12) months of the Lease term
commencing on the date Tenant takes possession of
the Demised Premises.
<PAGE>
Fixed Rent:
PERIOD ANNUAL FIXED RENT MONTHLY INSTALLMENT
- ------ ----------------- -------------------
From the Commencement Date $321,508.00 $26,792.33
through and including the
last day of the forty-second
(42nd) month following the
month in which the
Commencement Date occurs
From the first day of the 365,350.00 30,445.83
forty-third (43rd) month
following the month in which
the Commencement Date occurs
through and including the last day
of the ninety-sixth (96th) month
following the month in which the
Commencement Date occurred
From the first day of the 394,578.00 32,881.50
ninety-seventh month (97th)
month following the month
in which the Commencement Date
occurs through and including
the last day of the one hundred
thirty-second (132nd) month
following the month in which
the Commencement Date occurs.
Base Tax Year: The fiscal year commencing on July 1, 1996 and
ending June 30, 1997.
Tenant's Proportionate
Share: 5.63%
Base Operating Year: The twelve(12)month period commencing on January 1,
1996 through and including December 31. 1996.
Electricity: Direct Meter with Con Edison as Per Article 7.
Broker: Helmsley-Spear, Ine.
Security Deposit: $80,376.99 (one month security to be applied to
13th month's Fixed Rent charge)
Notices: If to Tenant, New Horizons Computer Learning Center
of Metropolitan New York, Ine.
One Penn Plaza
New York, New York 10119
Attention: General Manager
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<PAGE>
A COPY TO: New Horizons Education Corporation
500 Campus Drive
Morganville, New Jersey 07751
Attention: General Counsel
If to Landlord, Heitman Properties of New York Ltd.
40 Broad Street
New York, New York 10004
Attention: Building Manager
A COPY TO: Gordon Altman Butowsky Weitzen
Shalov & Wein
114 West 47th Street
New York, NY 10036
Attention: Jeffrey M. Gussoff, Esq.
Guarantor: Handex Corporation
ARTICLE 2
TERM. PREPARATION AND POSSESSION OF DEMISED PREMISES
Section 2.01. Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, upon and subject to the terms, covenants and conditions of this
lease, the Demised Premises. Tenant shall have the right to use, for purposes of
access to and egress from the Demised Premises, in common with others, the
lobbies, elevators and other public portions of the Building. The term of this
Lease shall commence on the Commencement Date and shall expire on the Expiration
Date, or on such earlier date, if any, on which the term of this Lease shall be
sooner terminated pursuant to any of the conditions or provisions of this Lease
or pursuant to law. Promptly after the occurrence of the Commencement Date, the
parties shall execute and deliver to the other an agreement in recordable form
and content reasonably satisfactory to Landlord (the Recommencement Date
Agreement) which shall state, among other things, the Commencement Date and
Expiration Date of the term hereof. The delay or failure of the parties to enter
into the Commencement Date Agreement shall not affect the dates herein described
as the Commencement Date or Expiration Date.
Section 2.02. Except as otherwise provided in Exhibit A-I attached
hereto and incorporated by reference herein, Tenant shall take possession of the
Demised Premises As is, and Landlord shall have no obligation to alter,
improve, decorate or otherwise prepare the Demised Premises for Tenant's
occupancy, except that Landlord shall perform Landlord's Work.
Section 2.03. If Landlord, for any reason whatsoever, shall be unable to
give Tenant possession of the Demised Premises on the Commencement Date,
Landlord shall not be subject to any liability, nor shall the validity of this
Lease or the obligations of Tenant hereunder be thereby affected. Without
limiting the foregoing. the parties hereto expressly waive the provisions of
Section 223-a of the Real Property Law and agree that the foregoing is intended
to constitute on express Provision to the contrary. within the meaning of said
Section 223-a.
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<PAGE>
ARTICLE 3
USE
Section 3.01. Tenant shall use and occupy the Demised Premises solely
for executive and general business office purposes and as a computer training
facility for computer operators, and for no other purpose.
Section 3.02. If any governmental license or permit, other than a
certificate of occupancy for the Building, shall be required for the proper and
lawful conduct of Tenant's business in the Demised Premises or any part thereof,
Tenant, at its expense, shall duly procure and thereafter maintain such license
or permit and furnish a photostatic copy thereof to Landlord upon Landlord's
request therefor. Tenant shall at all times comply with the terms and conditions
of each such license or permit.
Section 3.03. (a) Any provision hereof to the contrary notwithstanding,
Tenant shall not use the Demised Premises or any part thereof or permit the
Demised Premises or any part thereof to be used (i) for a banking, trust
company, depository, guarantee or safe deposit business, (ii) as a savings bank,
or as a savings and loan association or as loan company, (iii) for the sale of
travelers' checks, money orders, drafts, foreign exchange or letters of credit
or for the receipt of money for transmission, (iv) as restaurant or bar or for
the sale of confectionery, soda, beverages, sandwiches, ice cream or baked goods
or for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, except for vending machines for the sale of prepackaged
consumer quantity foods and beverages to Tenant, its employees and guests and a
pantry for the preparation of coffee or tea, (vi) as a State of New York
accredited school, (vii) by any agency or department of the United States
Government or the City or State of New York or any foreign government or
instrumentality, (viii) for public stenography, (ix) for an employment or
placement agency, or (x) for the business of photographic or offset printing.
(b) Tenant shall not suffer or permit the Demised Premises or any part
thereof to be used in any manner, or anything to be done therein, or suffer or
permit anything to be brought into or kept therein. which would in any way (i)
violate any of the provisions of any 'Superior Lease. or 'Superior Mortgage'
provided such terms, conditions or provisions are provided to Tenant in advance,
as defined herein, the certificate of occupancy for the Demised Premises or the
Building or the requirements of public authorities, (ii) cause, or in Landlord's
reasonable opinion be likely to cause, physical damage to the Building, (iii)
constitute a public or private nuisance, (iv) impair the appearance, character
or reputation of the Building, (v) interfere with the normal operation of the
heating, air-conditioning. ventilating, plumbing or other mechanical or
electrical systems of the Building or the elevators installed therein, or (vi)
impair or interfere with the use of any of the other areas of the Building by,
or occasion discomfort, annoyance or inconvenience to, Landlord or any of the
other tenants or occupants of the Building.
ARTICLE 4
FIXED RENT
Section 4.01. Throughout the term of this Lease, Tenant shall pa, Fixed
Rent in equal monthly installments, in advance, on the first day of each and
every calendar month during the term of this Lease, except that Tenant shall pay
the first monthly installment of Fixed Rent (notwithstanding the fact that such
installment of Fixed Rent is for the month immediately following the Rent
Concession Period) upon the execution and delivery of this Lease by Tenant. In
the event that the Commencement Date shall be a date other than the first day of
a calendar month, Fixed Rent shall be prorated for such period from the
Commencement Date to the end of such calendar month.
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<PAGE>
Section 4.02. All costs and expenses (other than Fixed Rent) which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be
deemed and constitute additional rent hereunder, and in event of nonpayment,
Landlord shall have all the rights and remedies with respect thereto as is
herein and at law provided for in case of nonpayment of Fixed Rent.
Section 4.03. All Fixed Rent and additional rent shall be paid promptly
when due, without notice or demand therefor, and without any abatement,
deduction or set-off for any reason whatsoever, except as may be expressly
provided in this Lease, and shall be paid in lawful money of the United States
to Landlord or Landlord's agent at such place as Landlord or Landlord's agent
may designate by notice to Tenant. Any checks tendered by Tenant in payment of
Fixed Rent, additional rent and adjustments of Fixed Rent, shall be either (a) a
teller's or cashier's or of ficial bank check of a bank which is a member of the
New York Clearing House Association and shall be payable to the order of
Landlord (or Landlord's agent) or (b) Tenant's good, unendorsed check drawn on a
bank which is a member of the New York Clearing House Association and payable to
the order of Landlord (or Landlord's agent).
Section 4.04. If all or any part of the Fixed Rent or additional rent
shall at any time become uncollectible, reduced or required to be refunded by
virtue of any rules, regulations, orders, laws and ordinances (including,
without limitation, rent control or stabilization laws) of governmental or
quasi-governmental authorities (collectively, "Laws and Ordinances".), then, for
the period prescribed by such Laws and Ordinances, Tenant shall pay to Landlord
the maximum amounts permitted pursuant to said Laws and Ordinances. Upon the
expiration of the applicable period of time during which such amounts shall be
uncollectible, reduced or refunded, Tenant shall pay to Landlord all such
uncollected, reduced or refunded amounts that would have been payable for such
period of time absent such Laws and Ordinances to the extent permitted by law.
Section 4.05. In addition to any other remedies Landlord may have under
this Lease, if any Fixed Rent or additional rent payable hereunder by Tenant to
Landlord are not paid within five (5) days after the date due hereunder, Tenant
shall pay to Landlord a late charge equal to the greater of (a) S250.00 or (b)
such Fixed Rent or Additional Rent shall bear interest at the rate of one and
one-half (1-l/2%) percent per month or the maximum rate permitted by law,
whichever is less, from the due date thereof until paid, and the amount of such
interest shall be additional rent hereunder.
Section 4.06. Notwithstanding the foregoing, commencing on the
Commencement Date, monthly Fixed Rent shall abate for the first twelve (12)
calendar months of the Term. The abatement of monthly Fixed Rent provided herein
shall not relieve tenant form the performance of Tenants other obligations under
this Lease including the obligation to pay on a timely basis all Rent Adjustment
and all other additional rent and other obligations under this Lease, which
shall become due and payable during the Term.
ARTICLE 5
TAXES
Section 5.01. In addition to the Fixed Rent herein before reserved,
Tenant covenants and agrees TO pay to Landlord, as additional rent, sums
computed in accordance with the following sections hereof.
Section 5.02. For the purposes of this Article and other provisions of
this Lease: (a) The term Taxes shall mean all real estate taxes, assessments,
special assessments, water and sewer rents, governmental levies, county faxes or
any other govemmcMal charge, general or special, ordinary or extraordinary,
unforeseen as well as foreseen, of any and every kind or nature whatsoever,
which are or may be assessed or imposed upon the Land, the Building and the
sidewalks, plazas, streets and alleys in front of or 9117196: 12:46pm adjacent
thereto, and any rights or interests appurtenant thereto under the laws of the
United States, the State of New York or any political subdivision thereof or by
the City of New York, or any political subdivision thereof. If, due to a future
change in the method of taxation or in the taxing authority, a franchise,
income, transit, profit or other tax or governmental imposition, however
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<PAGE>
designated (including without limitation any tax, excise or fee, measured by or
payable with respect to any rents, licenses or other charges received by
Landlord and levied against Landlord and/or the Land and/or Building) shall be
levied against Landlord and/or the Land and/or the Building in substitution, in
whole or in part, or as an addition to or in lieu of any Taxes, then such
franchise, income, transit. profit or other tax or governmental imposition shall
be deemed to be included within the definition of the term ~Taxes' for the
purposes hereof, excluding any income, corporate franchise, estate, inheritance,
succession, capital stock or transfer tax levied on Landlord. Only Landlord
shall be eligible to institute tax reduction or other proceedings to reduce the
assessed valuation of the Land or the Building.
(b) The term "Tax Year" shall mean each twelve (12) month period
following the Base Tax Year, any portion of which period occurs during the term
of this Lease.
Section 5.03. Tenant shall pay to Landlord, as additional rent
hereunder, an amount (the "TAX Payment") equal to Tenant's Proportionate Share
of the amount, if any, by which the Taxes for any Tax Year, any part of which
shall occur during the term of this Lease, shall exceed the Taxes payable for
the Base Tax Year, whether such increase results from a higher tax rate or an
increase in the assessed valuation of the Land or the Building, or both, or from
any other cause or reason whatsoever. A copy of the tax bill of The City of New
York or other taxing authority imposing Taxes on the Land or the Building shall
be sufficient evidence of the amount of Taxes. Notwithstanding the fact that the
aforesaid additional rent is measured by Taxes, such amount is additional rent
and shall be paid by Tenanr as provided herein regardless of the fact that
Tenant may be exempt, in whole or IN part, from the payment of any Taxes by
reason of Tenants diplomatic status or for any other reason whatsoever.
Section 5.04. With respect to each Tax Year occurring in whole or in
part during the term of this Lease, Tenant shall pay to Landlord the Tax
Payment, in equal monthly installments during the calendar year in which such
Tax Year commences, in the manner hereinafter described. At any time during the
calendar year in which a Tax Year commences. Landlord may furnish to Tenant a
written estimate (a Tax "Estimate") setting forth Landlord's estimate of the Tax
Payment for such Tax Year (.Estimated Tax Payment.). Such estimate shall be
determined by Landlord by applying to the most recently announced assessed value
of the Land and Building (whether final or otherwise) such tax rate as Landlord
shall anticipate is the tax rate to be finally determined for such Tax Year.
Subject to adjustment as hereinafter provided, Tenant shall pay Landlord on the
first day of each month during each calendar year occurring in whole or in part
during the term hereof, an amount equal to one-twelfth (1/12th) of the Estimated
Tax Payment for the Tax Year commencing during such calendar year. If Landlord
furnishes a Tax Estimate for the Tax Year subsequent to the commencement of the
calendar year in which such Tax Year begins, then (a) until the first day of the
month following the month in which the Tax Estimate is furnished to Tenant,
Tenant shall continue to pay to Landlord on the first day of each month an
amount equal to the monthly sum payable by Tenant to Landlord with respect to
the previous Tax Year, (b) promptly after the Tax Estimate is furnished to
Tenant. Landlord shall give notice to Tenant stating whether the amount
previous1y paid by Tenant to Landlord during such -calendar year was greater or
less than the installments of the estimated Tax Payment to be paid during such
calendar year in accordance with the Tax Estimate. and (i) if there shall be a
deficiency, Tenant shall pay the amount thereof within thirty (30) days after
demand therefor, or (ii) if there shall have been an overpayment, Landlord shall
credit the amount thereof against the next monthly installments of the
additional rent payable under this Lease. and (c) on the first day of the month
following the furnishing to Tenant of the Tax Estimate, and monthly [hereafter
umil the rendering to Tenant of a Tax Statement Hereinafter defined) for such
Tax Year, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12) of
the. amount shown on such Tax Estimate. At any time during or after such Tax
Year, (x) Landlord shall furnish to Tenant a written statement (a "Tax
Statement") setting forth the Tax Payment for such Tax Year, and stating whether
the sum' of the installments previously paid by Tenant to Landlord pursuant to
the Tax Estimate or otherwise for such Tax Year was greater or less than the
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sum of the installments of the Tax Payment to be paid for such Tax Year in
accordance with the Tax Statement. (y) any deficiency or overpayment shall be
disposed of in the manner of a deficiency or overpayment in Estimated Tax
Payment. and (z) on the first day of the month following the month in which the
Tax Statement is furnished to Tenant. and monthly thereafter until a new Tax
Estimate or Tax Statement is furnished to Tenant. Tenant shall pay to Landlord
an amount equal to one-twelfth 1/12th) of the Tax Payment shown on the Tax
Statement.
ARTICLE 6
OPERATING EXPENSES
Section 6.01. In addition to the annual Fixed Rent, Tenant covenants and
agrees to pay. as additional rent, sums computed in accordance with the
following sections hereof.
Section 6.02. For the purposes of this Article 6 and other provisions of
this Lease:
(a) The term "Operating Expenses. shall mean all costs and expenses
paid or incurred by Landlord or on Landlord's behalf which are properly
allocable to the ownership, management, repair. maintenance. replacement.
restoration or operation of the Building, the Land and any plazas, sidewalks,
curbs and appurtenances thereto. including, without limitation. the following
items (which items are illustrative of items to be included in Operating
Expenses):
(1) Labor Costs. (as such term is hereinafter defined) of
persons performing services required in connection with the operation, repair
and maintenance of the Land or the Building;
(2) the cost of (including, without limitation, any rental
cost of) materials and supplies used in the operation. cleaning, safety,
security, renovation, replacement, repair and maintenance of the Building, its
plazas, sidewalks, curbs and appurtenances, and any plant, equipment, facilities
and systems designed to supply heat, ventilation, air conditioning or any other
services or utilities, or comprising any portion of the electrical. gas, steam,
plumbing. sprinkler. mechanical, communications, alarm, security or fire/life
safety systems or equipment. including any sales and other taxes thereon;
(3) the depreciation for, or the rental cost or value
(including applicable sales taxes) of, hand tools and other movable equipment
used in the operation, cleaning, safety, security, repair or maintenance of the
Building, its plazas. sidewalks. curbs and appurtenances:
(4) reasonable legal, accounting and other professional fees
incurred in connection with the operation or management of the Land or the
Building;
(5) amounts charged to Landlord by independent contractors for
services. materials and supplies furnished in connection with the operation,
repair and maintenance of any part of the Building. its plazas. sidewalks, curbs
and appurtenances, including the heating, air-conditioning, ventilating,
plumbing. electrical. elevator. safety and other systems of the Building;
(6) the cost of all charges for window cleaning and other
cleaning, janitorial. security and other services, in and about the Building,
its plazas. sidewalks. curbs and appurtenances;
(7) premiums paid by Landlord for rent, casualty, boiler,
sprinkler, plate-glass. liability and fidelity insurance with respect to the
Land or Building its plazas, sidewalks, curbs and appurtenances. and any other
insurance Landlord maintains or is required to maintain with regard to the Land
or the Building or the maintenance or operation thereof:
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<PAGE>
(8) costs (including all applicable taxes) for electricity (as
measured by the Building's dedicated electric meters and evaluated under the
same rate classification and frequency that Landlord is charged by the public
utility furnishing electricity to the Building), steam, telephone, and other
utilities for the portions of the Land and the Building not leased and occupied
by tenants in the Building and for utilities and electricity (so measured and
evaluated) consumed in connection with the operation of the heating, ventilating
and air conditioning equipment servicing the Building, including the tenanted
portions thereof;
(9) water charges and sewer rents or charges to the extent not
specifically reimbursable by tenants of the Building;
(10) the cost of painting and otherwise decorating any
non-tenant areas of the Building, its plazas and sidewalks;
(11) holiday decorations for the lobby and other public
portions of the Building, its plazas and sidewalks;
(12) dues, fees and contributions paid to civic organizations
and associations representing Landlord, or of which Landlord IS a member, in the
City of New York. which relate to Landlord's ownership of the Building;
(13) franchise. license and similar fees and charges- paid by
Landlord tO any governmental agency for the privilege of owning, leasing,
operating, maintaining or servicing the Building or any of its equipment.
property or appurtenances;
(14) the cost of exterior and interior landscaping of
non-tenant areas of the Land, the Building, its plazas and sidewalks;
(15) the cost of uniforms, work clothes and dry cleaning for
personnel of the Building;
(16) the cost or value, or the cost or value of the rental,
together with the cost of installation, of any Building security or other system
used in connection with life or property protection installed after the Base
Year (including the cost, or the cost or value of the rental, of all machinery,
electronic systems and other equipment comprising any part thereof), as well as
the cost of the operation and repair of any such system in operation during the
Base Year:
(17) whether or not capitalized under generally accepted
accounting principles, costs for alterations and improvements to the Building
made after the Base Year by reason of the laws and requirements of any public
authorities or the requirements of insurance bodies or Landlord's insurer,
provided, however, that to the extent such costs are capitalized under generally
accepted accounting principles, such cost shall be amortized over a period of
five years;
(18) management fees or, if no managing agent is employed by
Landlord, a sum in lieu thereof which is not in excess of the then prevailing
rates for management fees of other first class office buildings in New York
County;
(19) whether or not capitalized under generally accepted
accounting principles, the cost of improvements. equipment or machinery
installed for the purpose of reducing energy consumption or reducing other
Cooperating Expenses. provided. however that to the extent such costs are
capitalized under generally accepted accounting principles such costs shall be
amortized over a period of five years;
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<PAGE>
(20) all other charges properly allocable to the repair.
ownership, management, maintenance, replacement, restoration or operation of the
Building in accordance with real estate accounting practices customarily used in
New York City. The term 'Labor Costs' shall mean all expenses incurred by
Landlord or on Landlord's behalf which shall be related to employment OF
personnel. including without limitation amounts incurred for wages. salaries and
other compensation for services. payroll, social security, unemployment and
other similar taxes, Workers' Compensation insurance. liability benefits.
pensions. hospitalization, retirement plans and insurance (including, without
limitation. group life and disability), uniforms and working clothes and the
cleaning thereof, and expenses imposed on or on behalf of Landlord pursuant to
any collective bargaining agreement relating to such employees. With respect to
employees who are not employed on a full-time basis with respect to the
Building, a pro rata portion of expenses allocable to the time any such employee
is employed with respect to the Building shall be included in Labor Costs.
(b) The following items are to be excluded from Operating Expenses:
(1) Labor Costs in respect of officers and executives of Landlord. unless for
work actually performed in or about the Building ordinarily done by a third
person. and then only at compensation no higher than that which would have been
paid to such third person; (2) legal or other fees. leasing commissions,
advertising expenses, promotional expenses and other costs incurred in leasing
or attempting to lease any portion of the Building; (3) any insurance premium to
the extent that Landlord is specifically entitled to be reimbursed therefor by
Tenant pursuant to this Lease (other than pursuant to this Article) or by any
other tenant or other occupant of the Building pursuant to its lease (other than
pursuant to an operating expenses escalation clause contained therein); (4) the
cost of any items for which Landlord is reimbursed by insurance or otherwise
compensated, including reimbursement by any tenant; (5) the cost of any
alterations, additions, changes, replacements, improvements and repairs and
other items which are made in order to prepare space for occupancy by a new
tenant; (o) the cost of electricity furnished to the Demised Premises or any
other space in the Building leased to tenants and for which tenants are
specifically billed in accordance with the terms of their leases; (7) all Taxes;
and (8) refinancing costs.
(c) The cost of any item which was included in Operating Expenses
for the Base Year and which is no longer being incurred by Landlord by reason of
the installation of a labor saving device or other capital improvement shall be
deleted from Operating Expenses for the Base Year in connection with the
calculation of the Operating Payment for all Operating Years from and after the
Operating Year in which such installation occurs.
(d) If during all or part of the Base Operating Year or any
Operating Year, Landlord shall not furnish any particular item(s) of work or
service (which would otherwise constitute an Operating Expense hereunder) to
portions of the Building due to the fact that (i) such portions are not occupied
or leased, (ii) such item of work or service is not required or desired by the
tenant of such portion, (iii) such tenant is itself obtaining and providing such
item of work or service or (iv) for any other reason, then, for the purposes of
computing Operating Expenses. the amount for such item and for such period shall
be deemed to be increased by an amount equal to the additional costs and
expenses which would have been incurred by Landlord had Landlord furnished or
caused to be furnished consistent with landlord's then current practice such
time of work or service to such portion of the Building or TO such tenant bating
such period. The foregoing provision shall not be applicable to any particular
item(s) of work or service which, in the year in question, is furnished by
Landlord to at least 95% of the leasable area of the Building or to tenants
leasing at least 95% of the leasable area of the Building and any adjustment
made pursuant to the preceding sentence shall be calculated to equal the
additional costs and expenses which would have been incurred by Landlord had
Landlord furnished or caused to be furnished consistent with Landlord s then
current practice such item of work or services to 95% of the leasable area of
the Building, or to tenants leasing 95% of the leasable area of the Building, as
the case may be. Landlord shall Insistently apply the definition of Operating
Expenses for the Base Operating Year and any subsequent Operating Year.
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(e) The term Operating shall mean each twelve (12) month period
following the Base Operating Year, any portion of which period occurs during the
term of this Lease.
(f) The term Operating Statement. shall mean a written statement
prepared by Landlord or its agent. setting forth Landlord's computation of the
sum payable by Tenant under this Article for a specified Operating Year.
Section 6.03. For each Operating Year. any part of which shall occur
during the term of this Lease, Tenant shall pay an amount (the "Operating
Payment-) equal to Tenant's Proportionate Share of the amount, if any, by which
Operating Expenses for such Operating Year shall exceed the Operating Expenses
for the Base Operating Year, provided, however, that if the Commencement Date
shall occur other than on the first day of an Operating Year or if the term of
this Lease shall expire or be sooner terminated on other than the last day of an
Operating Year, then the Operating Payment in respect thereof shall be prorated
to correspond to that portion of such Operating Year occurring within the term
of this Lease. Notwithstanding the Base Operating Year, Tenant's first Operating
Payment shall not be due until the first anniversary of the Commencement Date.
Section 6.04. At any time during each Operating Year, Landlord may
furnish to Tenant a written statement (an "Estimate Statement.) setting forth
Landlord's estimate of the Operating Payment for such Operating Year (the
"Estimated Payment-). Tenant shall pay to Landlord on the first day of each
month during each Operating Year an amount equal to one twelfth (1/12th) of the
Estimated Payment If Landlord furnishes an Estimate Statement for an Operating
Year subsequent to the commencement thereof, then (i) until the first day of the
month following the month in which the Estimate Statement is furnished to
Tenant, Tenant shall continue to pay to Landlord on the first day of each month
an amount equal to the monthly sum payable by Tenant to Landlord with respect to
the previous Operating Year, (ii) promptly after the Estimate Statement is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
amount previously paid by Tenant to Landlord for the current Operating Year was
greater or less than the installment of the Estimated Payment to be paid for the
current Operating Year, and (a) if there shall be a deficiency, Tenant shall pay
the amount thereof within thirty (30) days after demand therefore or (b) if
there shall have been an overpayment, Landlord shall credit the amount thereof
against the next monthly installments of the additional rent payable under this
Lease; and (iii) on the first day of the month following the month in which the
Estimate Statement is furnished to Tenant. and monthly thereafter throughout the
remainder of the Operating Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12th) of the Estimated Payment shown on the Estimate Statement.
Landlord may, not more than twice during each Operating Year, furnish to Tenant
a revised Estimate Statement; if a revised Estimate Statement is furnished to
Tenant. the Estimated Payment for such Operating Year shall be adjusted in the
same manner as provided in the preceding sentence.
Section 6.05. At any time during or after each Operating Year, Landlord
shall furnish to Tenant an annual statement (the "Annual Statement.) for such
Operating Year. If the Annual Statement shows that the Estimated Payment (or
other payments) for such Operating Year exceed the Operating Payment which
should have been paid for Operating Year, Landlord shall credit the amount of
such excess against the next monthly installment of Fixed Rent payable under -
this Lease; if the Annual Statement for such Operating Year shows tub the
Estimated Payment for such Operating Year was less than the Operating Payment
(or other payments) which should have been paid for such Operating Year, Tenant
shall pay the amount of such deficiency within shiny (30) days after receipt of
the Annual Statement.
Section 6.06. Each Annual Statement shall be conclusive and binding upon
Tenant unless, within one hundred twenty (120) days after receipt thereof,
Tenant shall notify Landlord that it disputes the correctness of the Annual
Statement, specifying the particular respects in which the Annual Statement is
claimed to be incorrect. If such notice is sent, provided Tenant shall pay to
Landlord the amount shown to be due to landlord on the disputed Annual Casement,
the parties agree that, due to the confidential; nature of Landlord's books and
records, either party
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may refer the decision of the issue raised to a reputable independent firm of
certified public accountants selected by Landlord, and the decision of such
accountants shall be conclusive and binding upon the parties. The fees and
expenses involved in such decision 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).
ARTICLE 7
ELECTRICITY
Section 7.01. Tenant shall obtain and pay for Tenant's entire separate
supply of electric current to the Demised Premises (including the hearing and
air-conditioning equipment located therein) by direct application to and
arrangement with the public utility company servicing the Building. Landlord's
Work shall include the installation of an electric submeters (Meter.) to measure
electricity consumed by the Tenant in the Demised Premises thereafter, Tenant
shall, at its sole cost and expense, maintain in good working order, Meters,
feeders. risers and wiring serving the Demised Premises to distribute and
measure the electricity consumed by Tenant in the Demised Premises. Landlord
will permit its electric feeders. risers and wiring serving the Demised Premises
to be used by Tenant to the extent available and safely capable of being used
for such purpose. Landlord represents that the electrical risers providing
electricity service to the Demised Premises shall have the capacity to provide
not less than twelve (12) watts per useable square foot.
Section 7.02. Any additional risers, feeders or other equipment or
service proper or necessary to supply Tenants electrical requirements, upon
written request of Tenant, will be installed by Landlord, at the sole cost and
excuse of Tenant. if in Landlords sole judgment. the same are necessary and will
not cause permanent damage or injury to the Building or. the Demised Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations. repairs or expense or interfere with or disturb other
tenants or occupants. All such additional electrical work and installations
shall comply with the regulations of Landlord then in effect regarding the type
and quality of such additional electrical equipment and installations.
Section 7.03. Landlord shall not in any way be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur if
either the quantity or character of electric service is changed or is no longer
available or suitable for Tenants requirements for any reason whatsoever. If
either the quantity of the electrical service is changed by the utility company
supplying electrical service to the Building or is no longer available or
suitable for Tenant's requirements, no such change, unavailability or
unsuitability shall (a) constitute an actual or constructive eviction, in whole
or in part, (b) entitle Tenant to any abatement or diminution of Fixed Rent or
additional rent, etc.) relieve tenant from any of its obligations under this
Lease. or (d) impose any liability upon Landlord or its agents. by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of' Tenant's
business, or otherwise.
Section 7.04 .Tenant agrees not to connect any additional electrical
equipment of any type to the Building electric distribution system. beyond that
on tenants approved plans for initial occupancy other than lamps. typewriters
and other office machines which consume comparable amounts of electricity,
without the Landlord s prior written consent which consent shall not be
unreasonably withheld or delayed. Tenant covenants and agrees that at all times
its use of electric current shall never exceed the capacity of the then existing
feeders to the Building or the risers or wiring installation servicing the
Demised Premises. Tenant agrees to indemnify and hold Landlord harmless from and
against any claims. liabilities. Damages losses and expenses arising out or in
connection with the use by Tenant of such feeders, risers and wiring serving the
Demised Premises violation of the foregoing.
Section 7.05. Landlord shall furnish, install and replace, as required,
at market rates all lighting tubes, larnps, bulbs and ballasts required in the
Demised Premises, at Tenants sole cost and expense. All lighting tubes,
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lamps, bulbs and ballests so installed shall become Landlord's Property upon the
expiration or sooner termination of this Lease.
Section 7.06.If any tax is imposed upon Landlord with respect to
electrical energy furnished as a service to Tenant by any federal, state or
municipal authority, Tenant covenants and agrees that Tenant's pro rata share of
such taxes shall be reimbursed by Tenant to Landlord as additional rent.
ARTICLE 8
LANDLORD'S PROPERTY TENANTS PROPERTY
Section 8.01. Except to the extent provided in Section 8.02 hereof, all
alterations, decorations, installations, additional fixtures, equipment.
Improvements and appurtenances attached to or built into the Demised Premises at
the commencement of or during the term of this Lease, including without
limitation, any and all paneling, partitions, railings, mezzanine. Doors,
galleries and the like, and whether or not by at the expense of Tenant (herein
collectively called "Landlord's Property") shall be and remain a part of the
Demised Premises, shall be deemed the property of Landlord and shall not be
removed by Tenant. Any carpeting or other personal property in the Demised
Premises on the Commencement Date, unless installed and paid for by Tenant,
Shall also fall within the definition of and constitute part of Landlord's
Property and shall not be removed by Tenant unless Tenant shall simultaneously
therewith or promptly thereafter install like replacements of equivalent or
better quality, in which event any such replacement(s) shall be deemed
Landlord's Property.
Section 8.02. All moveable partitions, business and trade fixtures,
machinery and equipment, including communications equipment and office
equipment, whether or not attached to or build into the Demised Premises, which
are installed in the Demised Premises by or for the account of Tenant without
expense to Landlord and can be removed without structural damage to the Building
(except (I0 where same is a replacement of an item theretofore furnished and
paid for b Landlord or against which Tenant has received a credit, any such
replacement being deemed Landlord's Property, and (ii) all other articles of
movable property which constitute Landlord's Property) and all furniture,
furnishings and other articles of moveable property owned by Tenant and located
in the Demised Premises (herein collectively call "Tenant's Property") shall bee
and shall remain the property of Tenant and may be removed by Tenant at any time
during the term of this Lease: provided, however, that if any of Tenant's
Property is removed, Tenant, at landlord's option, shall repair or pay to
Landlord, Landlord's reasonable and necessary cost (including, in either case, a
fifteen percent (15%) supervisory fee) or repairing any damage to the Demised
Premises or to the Building resulting from the removal thereof or caused by the
original installation thereof. Any equipment or other property for which
Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense to
Landlord and shall not be considered Tenant's Property but shall instead be
deemed Landlord's Property.
Section 8.03. At or before the Expiration Date of the term of this Lease
or the date of any earlier termination of this Lease. Tenant at its expense,
shall remove from the Demised Premises all of Tenant's Property. Upon any
removal of Tenant's Property, Tenant, at Tenant's sole cost and expense, shall
promptly restore the portion(s) of the Demised Premises affected by such removal
to their original condition and shall repair any damages to the Demised Premised
or the Building resulting from any such removal and/or the original installation
of Tenant's Property.
Section 8.04. Any items of Tenant's Property which shall remain in the
Demised Premises following Tenant's moving therefrom and after the Expiration
Date of the term of this Lease, or after any earlier termination date, may, at
the option of Landlord, be deemed to have been abandoned, and in any such items
may be retained by Landlord as its property or disposed of by Landlord, without
accountability, in such manner as Landlord shall determine at Tenant's expense
and Tenant shall pay to Landlord promptly upon being billed therefore, all of
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Landlord's reasonable and necessary costs incurred in connection with any such
removal and disposition as well as in connection with any restoration of the
Demised Premises required by such removal.
ARTICLE 9
REPAIRS, ALTERATIONS AND LIENS
Section 9.01. (a) From and after the Commencement date Tenant, at its
sole cost and expense, throughout the term of this Lease, shall take good care
of the Demised Premises, the fixtures and appurtenances therein, Tenant's
Property and Landlord's Property and shall make all repairs and replacements
thereto as and when needed to preserve them in good working order and condition.
Tenant shall, at its sole cost and expense, promptly replace all scratched,
damaged or broken exterior doors in and to the Demised Premises and shall be
responsible for all repairs, maintenance and replacements of wall and floor
coverings in the Demised Premises and for the repair, maintenance and
replacements of all sanitary, plumbing, and electrical fixtures and equipment
therein. In addition, Tenant shall be responsible, at its sole cost and expense,
for making all repairs, interior and exterior, structural and non-structural,
ordinary and extraordinary, in and to the Demised Premises and the Building and
the facilities and systems thereof, the need for which is caused by or arises
out of (i) the performance or existence of any Tenant's work or alterations,
(ii) the installation, use or operation of any Tenant's Property or Landlord's
Property in the Demised Premises, (iii) the moving of any Tenants Property or
any Landlord's Property in or Out of the Building, and (iv) the acts, omission,
neglect, improper conduct or other cause of Tenant or any of its sublessees, or
its or their employees, agents, contractors, visitors, licensees or invitees.
(b) All repairs, maintenance and replacements for which Tenant is
responsible for pursuant to this Section shall be performed in accordance with
the requirements of this Article 9. If Tenant fails to make any repairs,
restorations or replacements for which Tenant is responsible under this Lease,
Landlord, after notice to Tenant and reasonable opportunity to do so, except in
an emergency when no notice shall be required, may (but shall not be obligated
to) make same and landlord's reasonable costs of doing so, plus a fifteen
percent (15%) supervisory fee to Landlord, shall be collectible as additional
rent hereunder and shall be paid by Tenant to Landlord within ten (10) days
after rendition of Landlord's bill or statement therefor.
(c) Tenant agrees that the design and construction of the
entrance to the Demised Premises, including without limitation all signage,
shall be subject to the approval of Landlord as provided for herein and shall
conform to the Building's standard for multi-tenanted floors.
Section 9.02. Except for those matters which are Tenants responsibility
as provided in Section 9.01 hereof, Landlord, at its expense, shall maintain and
keep the public portions of the Building and its systems and facilities
servicing the Demised Premises in good working order, condition and repair.
Tenant shall give Landlord prompt notice of any defective condition of which it
has knowledge in any Building plumbing, heating or cooling system or electrical
line located in, servicing or passing through the Demised Premises.
Section 9.03. Except as c otherwise may be expressly provided in this
Lease, Landlord shall have no liability to Tenant, nor shall Tenants covenants
and obligation under this Lease be reduced or abated in any mariner whatsoever
by reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or botany portion of
the Building or of the Demised Premises, or in or to the fixtures, equipment,
systems or appurtenances of the Building or the Demised Premises. Landlord shall
employ reasonable efforts to minimize the interference with Tenants' conduct of
its business in the Demised Premises.
Section 9.04. Tenant shall make no alterations, decorations,
installations, additions or improvement; in or to the Demised Premises (Tenant
Changes.) or perform any other work without Landlord's prior written
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consent, which consent shall not be unreasonably withheld or delayed, and then
only by contractors or mechanics selected from Landlords then approved list, or
selected by Tenant and approved by Landlord; provided, however, if Tenant
selects such contractor or mechanic nor on landlords then approved list but
approved by Landlord, Tenant agrees to pay to Landlord as a supervisory fee
equal to Landlord's out-of-pocket expenses incurred in connection with the
supervision of such work. Tenant agrees to supply Landlord with financial and
other information about such contractors and mechanics as Landlord may
reasonably request prior to any bidding for any such work. All Tenant Changes
shall be done at Tenants sole cost and expense at such times and in such manner
as Landlord may from time to time designate and in full compliance with all
laws, rules and regulations of all governmental bodies having jurisdiction there
over. Landlord shall not be liable for any failure of the air-conditioning, and
heating and ventilating equipment in the Demised Premises installed by Landlord,
which is caused by Tenant Changes, and Tenant shall correct any condition
causing such failure.
Section 9.05. Prior to commencing any Tenant Changes or any other work
pursuant to the provisions of this Article, and as a condition to Landlord
granting its consent, Tenant shall furnish Landlord for its approval with:
(a) copies of all governmental permits and authorizations which
may be required in connection with such work.
(b) a certificate evidencing that Tenant (or Tenant's
contractors) has (have) procured Workers Compensation insurance covering all
persons employed in connection with the work who might assert claims for death
or bodily injury against Landlord, any Superior Lessor, Superior Mortgagee,
Tenant or the Building.
(c) such additional personal injury and property damage insurance
(over and above the insurance required to be carried by Tenant pursuant to the
provisions of Article 12 hereof as Landlord or Landlord's managing agent may
reasonably require.
(d) such security (including, without limitation, a bond issued
by a surety licensed to do business in the State of New York) in form and amount
as Landlord shall deem reasonably necessary.
(e) to the extent permitted by law, unconditional waivers of
mechanic's liens signed by contractors, subcontractors, materialmen and laborers
to become involved in such work.
(f) plans and specifications (including architectural,
engineering, mechanical, electrical and plumbing drawings, if applicable) for
the work to be done and copies of all contracts with contractors and
subcontractors selected by Tenant.
Section 9.06. Tenant shall keep accurate and complete cost records of
Tenant Changes for not less than two (2) years after said changes have been
completed and shall furnish photostatic copies thereof and of all contracts
entered into and work orders issued by Tenant in connection therewith to
Landlord's managing agent, certified as correct by Tenant, within 4 days of
Landlord's managing agent's request therefor.
Section 9.07. Tenant will not do any act or suffer any act which will,
in any way, encumber the title of Landlord (or Tenant) in and to the Demised
Promises nor will the interest or estate of Landlord or Tenant in the Demised
Premises be in any way subject to any claim by way of lien or encumbrance,
whether by operation of law or by virtue of any express or implied contract by
Tenant.
Section 9.0. Tenant will not suffer or permit any liens to be filed
against the Demised Premises, the Building or any part thereof, by reason of any
work, labor, services or materials done for, or supplied, or claimed to have
Seen done for or supplied to Tenant, or anyone holding the Demised Premises,
or any part thereof, through
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or under Tenant. If any such lien is at any time filed against the Demised
Premises or the Building, Tenant will cause the same to be discharged of record
within forty-five (45) days after the date of filing the same, by either
payment, deposit or bonding and if Tenant shall fail to do so, then, in addition
to any other right or remedy of Landlord, Landlord may, but shall not be
obligated to, procure the discharge of the same either by paying the amount
claimed to be due by deposit in court or bonding, Landlord will be entitled, if
Landlord so elects, to compel the prosecution of an action for the foreclosure
of such lien by the lienor and to pay the amount of the judgment, if any, in
favor of the lienor with interest, costs and allowances. Any amount paid or
deposited by Landlord for any of the aforesaid purposes, and all legal and other
expenses of Landlord, including reasonable attorneys' fees, in defending such
action or in procuring the discharge of such lien, with all necessary
disbursements in Connection therewith, will become due and payable as additional
rent on the date of payment or deposit as the case may be,
Section 9.09. Nothing in this shall be deemed to be, or construed in any
way as constituting, the consent or request of Landlord, express or implied by
inference or otherwise, to any person, firm or corporation for the performance
of any labor or the furnishing of any materials for any constructor, rebuilding,
alteration or repair of or to the Demised Premises or any part thereof, nor as
giving Tenant any right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials which might in any
way give rise lo a right to file any lien against Landlord's interest in the
Demised Premises.
ARTICLE 10
COMPLIANCE WITH LAWS
Section 10.01. Tenant shall give prompt notice to Landlord of any notice
that Tenant may receive of the violation of any law, ordinance, order,
regulation, or requirement of any public authority or direction of any public
officer or official applicable to the Demised Premises.
Section 10.02. Tenant, at its expense, shall comply with all laws,
orders, ordinances, regulations and requirements of any public authorities and
directions made pursuant to law by any public officer or officers which, in
respect of the Demised Premises or the use and occupancy thereof or the
abatement of any nuisance in, on or about the Demised Premises, shall impose any
violation, order or duty upon Landlord or Tenant arising from (a) Tenant's
occupancy, use or manner of use of the Demised Premises, (b) any installations,
equipment or other property therein, (c) any cause or condition created by or at
the instance of Tenant, or (d) any breach of any of Tenant's obligations
hereunder, and Tenant shall pay to Landlord, as additional rent hereunder,
promptly upon being billed therefor, amounts equal to all costs, expenses,
fines, penalties and damages which may be imposed upon or incurred by Landlord
or any Superior Lessor by reason of or arising out of Tenants failure to fully
and promptly comply with and observe the provisions of this Section. Subject to
the provisions of Section lO.03 hereof, Tenant may defer compliance with any
such law, requirement or direction so long as Tenant shall be contesting the
validity thereof or the applicability thereof to the Demised Premises, in
accordance with the provisions of Section 10.03.
Section 10.03. Tenant, at its expense, after notice to Landlord, may
contest, by appropriate proceedings prosecuted diligently and in good faith, the
validity, or applicability :o the Demised Premises, of any law or requirement of
any public authority, or direction of any public officer provided that:
(a) Landlord shall not be subject to civil or criminal penalty
or to prosecution for a crime, nor shall the Demised Premises or any part
thereof be subject to being condemned or vacated, by reason of non-compliance or
otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish
to the landlord either (i) the bond of a surety company satisfactory to
Landlord, which bond shall be, as to its provisions and form satisfactory
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to Landlord, and shall be in an amount at least equal to one hundred and twenty
five (125%) percent of the cost of such compliance (as estimated by a reputable
contractor designated by Landlord) and shall indemnify Landlord against the cost
thereof and against all liability for damages, interest, penalties, expenses
(including reasonable attorneys' fees and expenses) resulting from or incurred
in connection with such contest or non-compliance, or (ii) other security in
place of such bond satisfactory to Landlord;
(c) such non-compliance or contest shall not constitute or result
in any violation of any Superior Lease or Superior Mortgage, or if any such
Superior Lease Landlord Superior Mortgage shall permit such non-compliance or
contest on condition of the raking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
expense of the Tenant; and
(d) Tenant shall keep Landlord advised as to the status of such
proceedings.
Without limiting the application of the foregoing, Landlord shall be
deemed subject to prosecution for a crime if Landlord, or its managing agent, or
any officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or degree
wherever, whether by service of a summons or otherwise, unless such charge is
withdrawn before Landlord or its managing agent, or such officer, director,
partner, shareholder or employee of Landlord or its managing agent, as the case
may be, is required to plead or answer thereto.
Section 10.04. To the extent that compliance is not Tenants obligation
pursuant to Section 10.02 hereof, Landlord, at Landlords expense, shall comply
with or cause to be complied with, all laws, orders, ordinances regulations and
requirements of any public authority or lawful direction of any public official
or officer which, with respect to the public portions of the Building, shall
affect Tenants access to the Demised Premises or which shall affect the Building
systems servicing the Demised Premises. Landlord, however, may defer such
compliance so long as Landlord shall be contesting the validity or applicability
thereof.
ARTICLE 11
ASSIGNMENT. SUBLETTING. MORTGAGING
Section 11.01. Tenant shall not, whether voluntarily or involuntarily,
by operation of law or otherwise, (a) assign or otherwise transfer this Lease or
any interest therein or offer or advertise to do so, (b) sublet or suffer or
permit the Demised Premises or any part thereof to be used, occupied or utilized
by anyone other than Tenant or offer or advertise to do so, or (c) mortgage,
pledge, encumber or otherwise hypothecate (any of which shall be referred to as
a "Mortgaging") this Lease or the Demised Premises or any part thereof in any
manner whatsoever. The consent by [landlord to any assignment, subletting or
mortgaging shall not in any manner be construed to relieve Tenant, or any
assignee or sublessee from obtaining Landlord's prior express written consent to
any other or further assignment, subletting, or Mortgaging. In no event shall
any permitted sublessee assign or encumber its sublease or further sublet all or
a portion of its sublet space, or otherwise suffer or permit the sublet space or
any pan thereof to be used or occupied by Pliers.
Section 11.02. (a) For purposes of this Article, (i) the transfer by any
means of the legal or beneficial interests in either voting power, capital or
profits in Tenant or in any corporation, partnership or other entity directly,
or indirectly comprising Tenant, of the majority of the issued and outstanding
capital stock of any corporate Tenant or subtenant, or the transfer of a
majority of the beneficial interest in any other entity (partnership or
otherwise) which is the Tenant or a subtenant, however accomplished, whether in
a single transact on or in a series of related or unrelated transactions, shall
be deemed an assignment of this Lease or a sublease. as the case may be,
provided, however, that the transfer of the outstanding stock of any corporate
Tenant, shall be deemed not to include the sale of such stock by persons or
panics through the over-the-counter, market" of through any
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recognized stock exchange (ii) a takeover shall be deemed an assignment of this
Lease, (iii) a modification, amendment or extension of a sublease previously
consented to shall be deemed a new sublease, (iv) a merger or consolidation of
Tenant with another entity shall be deemed an assignment of this Lease and (v)
the sale of all or substantially all of the assets of Tenant shall be deemed an
assignment of this Lease. Tenant agrees to furnish Landlord with such
information as Landlord may reasonably request from time to time in order to
assure Landlord that neither Tenant nor any subtenant have violated the
provisions of this Article 11. Notwithstanding the foregoing, Section ll.01
shall nor prohibit the merger or consolidation of a corporate Tenant with a
corporation or the transfer of substantially all of a corporate Tenant's assets
to a corporation, which corporation in either circumstance is controlled by
Tenant or is under common control with Tenant, provided that in any of such
events:
(x) such merger, consolidation or transfer of assets is being
consummated for a good business purpose, and nor principally for the purpose of
transferring Tenant's interest in this Lease,
(y) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (A) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (B) the net worth of Tenant herein named on the
dare of this Lease, and
(z) proof reasonably satisfactory to Landlord of such business
purpose and net worth shall have been delivered to Landlord at least ten (10)
days prior to the effective dare of any such transaction.
Section 11.03. (a) Except as otherwise provided for in Section 11.04.
upon obtaining a proposed assignee or sublessee, upon terms satisfactory to
Tenant, Tenant shall give notice (Tenant's Notice) thereof to Landlord and in
such notice shall set forth in reasonable derail (i) the name and address of the
proposed assignee or sublessee, (ii) the nature and character of the business of
the proposed assignee or sublessee and its proposed use of the Demised Premises,
(iii) current financial information with respect to the proposed assignee or
sublessee including, without limitation, its most recent financial report, (iv)
an originally executed assignment or sublease agreement containing the business
terms and conditions of the proposed assignment or subletting, the effective
date of which shall be not less than forty-five (45) days after the giving of
Tenants Notice, (v) in the event of a desired subletting of less than all of the
Demised Premises, a description and floor plan of the proposed subleased
premises, and (vi) any other information reasonably requested by Landlord.
(b) Landlord may, within thirty (30) days following receipt of
Tenant's Notice containing the above required information, elect either of the
two options hereinafter set forth in this subsection 11.03(b) and, if Landlord
shall not so elect, Landlord and Tenant shall follow the procedures of Section
11.05 below:
(1) In the event of a proposed assignment or in the
event of a proposed subletting of all or substantially all of the Demised
Premises, Landlord, at its option, exercisable by notice given to Tenant within
the aforesaid thirty (30) day period, may (i) terminate this Lease, or (ii) in
the event of a proposed assignment, require Tenant to assign this Lease to
Landlord or its designer, in all cases effective as of a dare specified in
Landlord's termination notice which dare shall be the rarer of (x) the effective
date proposed by Tenant for such assignment, subletting, or (y) a date, as
Landlord may determine in its sole distension, which shall be not more than
ninety (90) days after the giving of Landlord's termination notice. If Landlord
shall exercise such termination option, then the term of this Lease shall
cease and expire on the date specified in Landlord's termination notice with the
same force and effect as if such date were originally provided herein as the
Expiration Dare of the term hereof.
(2) In the event of a proposed sublease for less than 11 or
substantiallv all of the Demised Premises but for all or substantially all of
the balance of the term here of, Landlord. at its option, exercisable try notice
given to Tenant within said thirty (30) day period, may terminate this Lease
only as to the portion of the Demised Premises which the proposed sublease
would, cover. In the event Landlord shall exercise
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such termination option the term of this Lease with respect only to such portion
of the Demised Premises shall cease and expire on the date specified in
Landlords termination notice, (B) the Fixed Rent and additional rent payable
hereunder shall be respectively reduced, effective as of 11:59 p.m. on said
date, by the amounts thereof allocable to such portion of the Demised Premises,
and (C) the parties shall then (or prior thereto or promptly thereafter as
Landlord may request) enter into a modification agreement of this Lease
reflecting the deletion of such portion from the Demised Premises effective as
of said date and the reduction of Fixed Rent, additional rent and Tenant's
Proportionate Share required thereby. In the event Landlord shall exercise
either of its foregoing options, Tenant shall be responsible for the cost of
constructing any necessary despising walls required by the deletion or
subletting of such portion of the Demised Premises and complying with any laws
and requirements of public authority pertaining thereto.
For purposes of this subsection 11.03(b), as used herein the term
Substantially all shall mean in excess of eighty percent (8070) of the Demised
Premises, or the remaining terse of the Lease, as the case may be.
Section 11.04. Notwithstanding the provisions of Section 11.03 to the
contrary, (a) If Tenant desires to assign this Lease or sublet all or any
portion of the Demised Premises to an assignee or sublessee whose business is
compatible with the business of the Tenant and whose business shall be
integrated with and operated in conjunction with the business of the Tenant in
the Demised Premises (a Related User), then Landlord shall have no right lo
terminate the Lease and Landlord agrees not to unreasonably withhold its consent
to such assignment or subletting, provided, however, Tenant shall, upon
obtaining a proposed assignee or sublessee who is a Related User upon terms and
conditions satisfactory to Tenant, shall give notice (-Tenants Request for
Approval Notice) thereof to Landlord and such notice shall set forth in
reasonable detail (i) the name and address of the proposed assignee or
sublessee, (ii) the nature and character of the business of the proposed
assignee or sublessee and its proposed use of the Demised Premises, (iii)
current financial information with respect to the proposed assignee or sublessee
including, without limitation, its most recent financial report, (iv) an
originally executed assignment agreement or sublease, as the case may be, which
shall include the business terms and conditions of the proposed assignment or
subleuing, the effective date of which shall not be less than forty-five (45)
days after the giving of Tenan`'s Request for Approval Notice, (v) a description
and floor plan of the proposed sublease premises which in all cases shall nor be
less than one complete floor of the demised premises, and (vi) any other
information reasonably requested by Landlord. Notwithstanding the fan that a
proposed assignee or subtenant may be a Related User. in no event shall the fact
that the proposed assignee or subtenant is a Related USER BE construed as
waiving Landlord's rights to approve Tenants proposed sublessee or assignee in
accordance with the terms of Section 11.05 below.
Section 11.05. In the event Tenant shall have duly complied with the
provisions of Section 11.03 and 11.04, as the case may be, and Landlord shall
not have exercised any of its options pursuant to Section 11.03, and on
condition that Tenant is not then in default in the payment of any Fixed Rent or
additional rent due hereunder and is no' otherwise in material default with
respect to any of Tenant's other obligations under this Lease, Landlord's
consent (which shall be in writing and in form satisfactory to Landlord) to the
proposed assignment or sublease shall not be unreasonably withheld or delayed,
provide, however, that Landlord may withhold consent thereto if. in the exercise
of its sole but reasonable judgment, to determines that:
(a) the financial condition (as shall be reasonably evidenced to
Landlord by Tenant) and general reputation of the proposed assignee or sublessee
are not commensurate with the financial obligations imposed by the proposed
assignment or sublease, or the character and dignity of the Building and the
existing tenancies thereof:
(b) the proposed use of the Demised Premises or the relevant part
thereof (i) is not appropriate for the Building or consistent with the character
of the Building tenancies thereof or (ii) will violate the
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perrnitted use(s) set forth in Section 3.01 hereof or will violate any negative
covenant as to use contained in any other lease of space in the Building;
(c) the nature of the occupancy of the proposed assignee or
sublessee will cause an excessive density of employees or traffic or make
excessive demands on the Building's services, or facilities or in any other way
will lessen the character or dignity of the Building;
(d) except as provided for in Section 11.04, the proposed
assignee or sublessee (or any person or entity which directly or indirectly
controls, is controlled by or is under common control with the proposed assignee
or sublessee or any person who controls the proposed assignee or sublessee) is
then an occupant of any pan of the Building or any other building in the County
of New York owned or operated under a ground or underlying lease by Landlord or
any person or entity which directly or indirectly controls, is controlled by, or
is under common control with Landlord or any person or entity which controls
Landlord;
(e) the proposed assignee or sublessee is a person or entity with
whom Landlord divas negotiating to lease space in the Building at any time
during the previous six (o) month period;
(f) the proposed sublease or assignment does not comply with the
applicable provisions of this Article;
(g) there would be, as a result of the proposed assignment or
subletting, more than the legal number of occupants (including Tenant and
Landlord or its designees) of the Demised Premises; and
As a condition of Landlord's consent to any assignment or subletting,
Tenant shall reimburse Landlord on demand for any reasonable costs the may be
incurred by Landlord in connection with said assignment or sublease. including,
without limitation, the cost of malting investigations as to the acceptability
of the proposed assignee or sublessee and reasonable attorneys' fees incurred in
connection with the reviewing of the assignment or sublease and preparing any
consent thereto.
Section 11.06. Each subletting pursuant to this Article shall be subject
to all of the covenants, agreements, terms, provisions and conditions contained
in this Lease. Notwithstanding any such subletting to Landlord or any such
subletting to any other sublessee and/or acceptance of rent or additional rent
by Landlord from any sublessee, Tenant shall and will remain fully liable for
the payment of the Fixed Rent and additional rent due and to become due
hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Lease on the pan of Tenant to be
performed and all acts and omissions of any licensee or sublessee or anyone
claiming under or through any sublessee which shall be in violation of any of
the obligations of this Lease, and any such violation shall be deemed to be a
violation by Tenant. If Landlord shall decline to give its consent to any
proposed assignment or sublease, or if Landlord shall exercise any of its
options under Section 11.03, Tenant shall indemnify, defend and hold harmless
Landlord against and from any and all loss, liability, damages, cost and
expense, including reasonable attorneys' fees, resulting from any claims that
may be made against Landlord by the pr Dosed assignee-or sublessee of Tenant or
by any brokers or other persons claiming a commission or similar compensation in
connection,: with such proposed assignment or sublease.
Section I i.o7. In the event that (a) Landlord fails to exercise any of
its options under Section 11.03, and (b) Tenant fails to deliver the fully
executed assignment or sublease within forty five (45) days after the expiration
of Landlord's options period pursuant to said Section or Section 11.04. as the
case may be, then Tenant shall again comply with all of the provisions and
conditions of Section 11.03 or 11.04, as the case may be before assigning this
Lease or subletting the Demised Premises or the relevant part thereof.
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Section 11.08. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed
that:
(a) no subletting shall be for a term ending later than one day
prior to the expiration date of
this Lease;
(b) no sublease shall be valid, and no sublessee shall take
possession of the Demised Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(c) Tenant, whether through a broker, agent, representative, or
otherwise shall not have (i) advertised or publicized in any way the
availability of THE Demised Premises or the relevant part thereof without prior
notice to Landlord, nor shall any advertisement state the name (as distinguished
from the address) of the Building or the proposed rents, or (ii) advertised or
publicly listed (but may have listed with a brokers) the Demised Premises or
relevant part thereof for subletting at a rental rate less than the greater of
(y) the Fixed Rent and additional rent then payable hereunder for such space or
(z) the fixed rent and additional rent at which Landlord is then offering to
lease other space in the Building; and
(d) each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, re-entry or dispossess by
Landlord under this Lease, Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
sublessee shall, at Landlords option, attorn to Landlord with respect to the
executory provisions of such sublease except that Landlord shall not (i) be
liable for any previous act or omission of the sublessor under such sublease,
(ii) be subject to any offset. not expressly provided in such sublease, which
theretofore accrued to such sublessee against Tenant, or (iii) be bound by any
previous modification of such sublease to which Landlord shall not have
consented in writing or by any previous prepayment of more than one month's rent
or additional rent thereunder.
Section 11.09. If the Landlord shall give its consent to any assignment
of this I=ase or to any sublease Tenant shall in consideration therefor, pay to
Landlord, as additional rent hereunder, the following sums, (each of which shall
hereinafter be referred to as Profit):
(a) in the case of an assignment, fifty percent (50%) of the
excess, if any, of (i) all sums and other consideration paid to Tenant and/or
its designee for or by reason of such assignment (including, but not limited to,
sums paid for the sale or rental of Tenants fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property except for Tenant's
trade equipment, utility charges) less, (ii) Tenant's Concession Package (as
hereinafter defined) and
(b) in the case of a sublease, fifty percent (50%) of the
excess, if any, of (i) the sum of (A) all rents, additional rents and other
consideration paid under the sublease to Tenant by the sublessee and (B) all
other sums and consideration paid to Tenant or its designee for or by reason of
such subletting (including, but not limit ;i to, sums paid for the sale or
rental of Tenant's fixtures, leasehold improvements, equipment, furniture or
other personal property) less (ii) the sum of (X) that part of the Fixed Rent
and additional rent hereunder allocable to the subleased space and accruing for
the corresponding period during the term of the sublease and (Y) Tenant's
Concession Package.
For purposes of this Lease, Tenants Concession Package shall be deemed
to mean the sum of (a) any reasonable and customary brokerage fees actually
incurred in connection with such assignment or subletting, (b) the Costs, if
any, actually incurred by Tenant to prepare the Demised Premises for the
sublessees or assignee's initial occupancy, including any cash allowance in lieu
of work, (c) My rent concession granted to any assignee or
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sublessce, as the case may be and (d) any legal. architectural engineering or
accounting fees actually paid in connection with such assignment or subletting.
Any amount(s) payable under this Section 11.09 shall be paid to Landlord
as and when sums on account thereof are paid by or on behalf of any assignee(s)
and/or any sublessee(s) to Tenant or its designee, and Tenant agrees to promptly
advise Landlord thereof and furnish such information with regard thereto as
Landlord may reasonably request from time to time.
Tenant shall furnish to Landlord in the January calendar month
immediately following each calendar year during any pan of which any such
sublease shall be in effect, a reasonably detailed financial statement certified
as being correct by an executive financial officer or, if Tenant is not a
corporation, a principal of Tenant, setting forth all sums accruing during the
prior calendar year and realized by Tenant from such sublease and a computation
of the Profit realized by Tenant during such prior calendar year. Tenant shall
remit to Landlord together with such statement any Profit or portion thereof on
account of such calendar year not previously remitted to Landlord.
Anything contained in the foregoing provisions of this section to the
contrary notwithstanding, neither Tenant nor any other person having an interest
in the possession, use, occupancy or utilization of the Demised Premises shall
enter into any lease, sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Demised Premises which provides for
rental or other payment for such use, occupancy or utilization based, in whole
or in pan, on the net income or profits derived by any person from such portion
of the Demised Premises so leased, used, occupied, or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and any
such purported lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest in the
possession, use, occupancy or utilization of any such pan of the Demised
Premises.
Section l l.O10. If this Lease shall be assigned, or if the Demised
Premises or any part thereof be sublet or occupied by any person or persons
other than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, sublessee or occupant and apply the net amount collected to the Fixed
Rent and additional rent herein reserved, but no such assignment, subletting,
occupancy or collection of rent shall be deemed a waiver of the covenants in
this Article, nor shall it be deemed acceptance of the assignee, sublessee or
occupant as a tenant, or a release of Tenant from the full performance by Tenant
of all the terms, conditions and covenants of this Lease.
Section 11.011. Each assignee or transferee shall assume and be deemed
to have assumed this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of the Fixed Rent, additional rent and adjustments
of rent, and for the due performance of all of the terms. covenants, conditions
and agreements herein contained on Tenants pan to be performed for the term of
this Lease and shall agree that the provisions of this Article. notwithstanding
such assignment or transfer, continue to be binding upon it in the future. No
assignment shall be binding on Landlord unless such assignee or Tenant shall
deliver to Landlord a duplicate original of the instrument of assignment which
contains a covenant of assumption by the assignee of all of the obligations
aforesaid and shall obtain from Landlord its aforesaid written consent thereto.
The joint and several liability of Tenant and any immediate or remote successor
in interest of Tenant and the due performance of the obligations of this Lease
on Tenant's pan to be performed or observed shall not be discharged. beat
released or impaired in any respect by any agreement or stipulation made by
Landlord extending the time for performance of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of Tenant pursuant to this Lease.
Section 11.012. The listing of any name other than that of Tenant,
whether on the doors of the Dimised Premises. on the Building directory or
otherwise shall not operate to vest any right or interest in this Lease or the
Demised Premises nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of thin Lease or to any sublease of to. Demised Premises
or to the use or occupancy thereof by third parties. It is expressly
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understood that any such listing is a privilege extended by Landlord that is
revocable at will by written notice to Tenant.
ARTICLE 12
INSURANCE
Section 12.01. Landlord shall maintain during the term of this Lease a
policy or policies of insurance insuring the Building against loss or damage due
to fire and other casualties covered within the classification of fire and
extended coverage, vandalism coverage and malicious mischief, sprinkler leakage,
water damage and special extended coverage on the Building. Such coverage shall
be in such amounts as Landlord may from time to time determine. Additionally, at
the option of Landlord, such insurance coverage may include the risks of
earthquakes and or flood damage and additional hazards, a rental loss
endorsement and one or more loss payee endorsements in favor of the holders of
any mortgages or deeds of trust encumbering the interest of Landlord in the Land
or Building or the ground or underlying lessors of the Land or Building, or any
portion thereof. Tenant shall neither use the Demised Premises nor permit the
Demised Premises to be used or acts to be done therein which will (a) increase
the premium of any insurance described in this Article; (b) cause a cancellation
of or be in conflict with any such insurance policies; (c) result in a refusal
by insurance companies of good standing to insure the Building or the Land in
amounts reasonably satisfactory to Landlord; or (d) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any operation being conducted in the Demised Premises. Tenant shall, at Tenant's
expense, comply as to the Demised Premises with all insurance company
requirements pertaining to the use of the Demised Premises. If Tenants conduct
or use of the Demised Premises causes any increase in the premium for such
insurance policies. then Tenant shall reimburse Landlord for any such increase.
Tenant, at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the American Insurance Association (formerly the National Board
of Fire Underwriters) and with any similar body.
Section 12.02. Tenant shall maintain during the term of this Lease the following
coverage:
(a) Comprehensive General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
arising out of Tenant's operations, assumed liabilities or use of the Demised
Premises, including a Broad Form Comprehensive General Liability endorsement
covering the insuring provisions of this Lease and the performance by Tenant of
the indemnity agreements set forth in this Article, for limits of liability not
less than:
Bodily Injury and $3,000,000 each occurrence
Property Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% 1nsured's participation
(b) Physical Damage Insurance covering (i) all office furniture,
trade fixtures, office equipment, merchandise and all other items of Tenants
property on the Demised Premises installed by, for, or at the expense of Tenant:
(ii) the Tenant's improvements, and (iii) all other improvements, alterations
and additions to the Demised Premises. Such insurance shall be written on an All
risks. of physical loss or damage basis, for the full replacement cost value new
without deduction for depreciation of the covered items and in amounts that meet
any co-insurance clauses of the policies of insurance and shall include a
- -vandalism and malicious mischief endorsement, sprinkler leakage coverage.
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(c) The minimum limits of policies of insurance required of
Tenant under this Lease shall in no event limit the liability of Tenant under
this Lease. Such insurance shall (i) name Landlord, and any other party it so
specifies, as an additional insured; (ii) specifically cover the liability
assumed by Tenant under this Lease. including, but not limited to, Tenants
obligations under this Article; (iii) be issued by an insurance company having a
rating of not less than A-X in Best's Insurance Guide or which is otherwise
acceptable to Landlord and licensed to do business in the State of New York;
(iv) be primary insurance as to all claims thereunder and provide that any
insurance carried by Landlord is excess and non-contributing with any insurance
requirement of Tenant; (v) provide that said insurance shall not be canceled or
coverage changed unless shiny (30) days' prior written notice shall have been
given to Landlord and any mortgagee of Landlord; and (vi) contain a
cross-liability endorsement or severability of interest clause acceptable to
Landlord. Tenant shall deliver duplicate copies of said policy or policies or
original certificates thereof to Landlord on or before the Lease commencement
Date and at least thirty (30) days before the expiration dates thereof. In the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificate, Landlord may, at its option, procure such policies for the
account of Tenant, and the cost thereof shall be paid to Landlord as additional
rent within five (5) days after delivery to Tenant of bills therefor.
(d) Tenant shall carry and maintain during the entire term of
this Lease. at Tenant's sole cost and expense, increased amounts of the
insurance required to be carried by Tenant pursuant to this Article. and such
other reasonable types of insurance coverage and in such reasonable amounts
covering the Demises Premises and Tenant's operations therein, as may be
reasonably requested by Landlord; provided the' such types and or amounts of
insurance are comparable to those being required by other landlords of first
class office buildings located in the Borough of Manhattan.
Section 12.03. Landlord and Tenant agree to have their respective
insurance companies issuing propem damage insurance waive any rights of
subrogation that such companies may have against Landlord or Tenant. As long as
such waivers of subrogation are contained in their respective insurance
policies, Landlord and Tenant hereby waive any right that either may have
against the other on account of any loss or damage to their respective property
to the extent such loss or damage is insurable under policies of insurance for
fire and all risk coverage, theft. public liability, or other similar insurance.
Without diminishing the foregoing requirement, in the event any party fails to
obtain such waiver of subrogation, the party who fails to obtain the waiver of
subrogation shall notify the other party of its failure to do so.
ARTICLE 13
DAMAGE OR DESTRUCTION
Section 13.01. If the Building or the Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause (whether or not
the damage or destruction shall have resulted from the fault or neglect of
Tenant, or its employees, agents or visitors) and if this Lease shall not have
been terminated in accordance with this Article, then Landlord. lo the extent
permitted by available insurance proceeds, shall repair the damage and restore
and rebuild the Building andlor the Demised Premises with reasonable dispatch
after notice to Landlord of the damage or destruction; provided, however, that
Landlord shall not be required to repair or replace any of Tenant s Property or
the property that is deemed Landlord's Property. Notwithstanding anything
contained herein to the contrary, in no event shall Tenant be relieved of
liability or responsibility for damage or destruction resulting from the acts or
neglect of Tenant or any of its sublessees or its or their employees. agents,
contractors, visitors. licensees or invitees, if the insurance policies carried
by Landlord on the Building do not contain a waiver of the right of subrogation,
nor shall Landlord be deemed to have waived any of its rights under this Lease
or at law or in equity.
Section 13.02. In the event all or a portion of the Demised Premises
shall be so damaged by fire or other casualty as to be rendered completely or
partially untenantable or in the event the Building shall be s damaged
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(irrespective of whether or not the Demised Premises are damaged) so that all or
a portion of the Demised Premises shall be rendered untenantable then, and in
any such event, Fixed Rent and the additional rent payable pursuant to Article 5
and 6 hereof shall be (a) completely abated in the event all of the Demised
Premises shall be untenantable, or (b) in the event only a portion of the
Demised Premises shall be untenantable, partially abated to the extent that such
Fixed Rent and additional rent shall be allocable to such untenantable portion
of the Demised Premises.
In either case, such abatement shall be only for the period from the
date of such damage to the date (i) such damage shall be substantially repaired,
or (ii) if the Demised Premises are not damaged but rendered untenantable
because of damage to the Building, the date on which the Demised Premises are
again tenantable, provided, however, that if Tenant (or any sublessee(s) or
licensee(s) of Tenant) should reoccupy all or pan of such untenantable space for
the conduct of business therein prior to the date that the damage thereto is
substantially repaired or such space is again tenantable, then the abatement of
Fixed Rent and additional rent pursuant to Article 5 and 6 hereof allocable to
such reoccupied space shall cease as of the date of such reoccupantcy. The term
"substantially repaired" as used herein shall mean repaired except for such
minor details or so called "punch-list" items, the non-performance of which
shall not preclude Tenant from reoccupying the affected portion or all of the
Demised Premises, as the case may be, and conducting its business therein,
Section 13.03. In the event the Building or the Demised Premises shall
be totally damaged or destroyed by fire or other casualty, or in the event the
Building shall be so damaged or destroyed by fire or other casualty
(irrespective of whether or not the Demised Premises are damaged thereby) that
Landlord shall decide to demolish or rebuild it, or if its repair or restoration
requires the expenditure (as estimated by a reputable contractor or architect
designated by Landlord' of more then twenty percent (20%) of the full
insurable value of the Building immediately prior to the casualty, then, and in
any of said events, Landlord shall have the option, exercisable by notice given
to Tenant within ninety (90) days after the date of the casualty, to cancel and
terminate this Lease as of a date of such damage if the Demised Premises are
untenantable or a date specified in Landlord's termination notice, whichever is
later which date shall be not more than ninety (90) days after the giving of
Landlord's termination notice, in which event the term of this Lease shall cease
and expire on the date specified in Landlord's notice with the same force and
effect as if such date were originally provided herein as the expiration date of
the term hereof.
Section 13.04. In the event of any damage or destination mentioned in
this Article which hall cause the Demised Premises to be untenantable. and if
Landlord has not substantially completed the making of the repairs and
restoration required to be made by Landlord pursuant to the provisions of this
Article within a period of eighteen (18) months from the date of such damage or
destruction, which period, however, shall be extended by the number of days, if
any, as shall equal the aggregate number of days that Landlord may have been
delayed in making such repairs and restoration by reason of labor trouble,
governmental controls, act of God, adjustment of insurance loss or any other
cause beyond Landlord's reasonable control, then Tenant may terminate this Lease
by notice given to Landlord within shiny (30) days after the expiration of such
eighteen (18) months or longer (by reason of any such extension) period,
effective as of a date specified in such notice, which shall be not more than
thirty (30) days after the giving thereof, and the term of this Lease shall
expire on such date with the same force and of at as if such date were
originally provided herein as the expiration date of the term hereof.
Section 13.05. Other than an abatement of rent for thus portion of the
Demised Premises rendered untenantable, no damages. compensation or claim shall
be payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Demised Premises or of the
Building pursuant to this Article. Landlord shall endeavor to effect such repair
or restoration promptly Id in such a manner (working, however. during Business
Hours of Business Days unless Landlord in its sole disc etion shall otherwise
determine) as not unreasonably interfere with Tenants use and occupancy of the
Demised Premises.
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Section 13.06. Notwithstanding any of the foregoing provisions of this
Article 13, if Landlord or any Superior Lessor or the holder of any Superior
Mortgage shall be unable to collect all of the insurance proceeds (including,
without limitation thereof, rent insurance proceeds) applicable to damage or
destruction of the Demised Premises or the Building by fire or other cause, by
reason of some action or inaction on the part of the Tenant or any of its
employees, agents or contractors, then, without prejudice to any other remedies
which may be available against Tenant, there shall be no abatement of Fixed Rent
or additional rent until the total amount of such rents not abated which would
otherwise have been abated equals the amount of uncollected insurance proceeds.
Section 13.07. Landlord will not carry separate insurance of any kind on
Tenant's Property or on property which is deemed Landlord's Property pursuant to
Section S.01 hereof and Landlord shall not be obligated to repair any damage
thereto or restore or replace same, the repair, restoration and replacement of
which shall be Tenant's responsibility and Tenant shall carry appropriate
insurance thereon and on all improvements and betterments made for or on behalf
of Tenant in the Demised Premises as required by this Lease.
Section 13.08. In the event of the termination of this Lease pursuant to
any of the provisions of this Article, this Lease and the term and estate hereby
granted shall expire as of the date of such termination with the same effect as
if such date were the date originally set forth herein as the expiration date of
the term hereof, and the Fixed Rent and additional rent payable hereunder shall
be apportioned as of such date subject, however, to an! applicable abatement to
which Tenant may be entitled pursuant to the provisions hereof.
Section 13.09. The provisions of this Article shall be considered an
express agreement governing any case of damage or destruction of the Demised
Premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York, providing for a contingency in the absence of an express
agreement and any other law of like import, now or hereafter in force, shall
have no application to the Demised Premises and this Lease.
ARTICLE 14
LANDLORD'S LIABILITY
Section 14.01. The Landlord shall not be liable to Tenant for (a) any
loss, injury or damage to property of Tenant or of others entrusted to employees
of the Building, or for any loss of or damage to any property of Tenant or
others by theft or action by a third party, (b) any injury or damage to persons
or property resulting FROM fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow leaks from any part of said Building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless caused by or due to the negligence of Landlord, (c) any of the
foregoing damage, loss or injury caused by other tenants or persons in the
Building or caused by operations in construction of any private, public or
quasi-public work, (d) any damage, loss or injury caused by or attributable, in
whole or in part, to any latent defect in the Demised Premises or in the
Building, and (e) consequential damages arising out of any claim by Tenant
against Landlord under this Lease, whether or not caused by the negligence of
Landlord, including (without limitation) claims Or any loss of use of, or loss
or damage to, all or any part of he Demised Premises or any equipment or
facilities therein.
Section 14.02. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors, Superior Mortgagees and its and their respective partners,
directors, officers, agents and employees from and against arty and all claims,
together with all costs, expenses and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon, including, without
limitation on, reasonable attorneys' fees and expenses, arising from or in
connection with:
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(a) the conduct or management of the Demised Premises or of any
business therein, or any work or thing whatsoever done, or any condition created
(other that by Landlord) in or about the Demised Premises during the term of
this Lease or any holdover period or during the period of time, if any, prior to
the Commencement Date that Tenant may have been given access to the Demised
Premises;
(b) any act. omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners. directors, officers, agents,
employees or contractors;
(c) any accident, injury or damage whatever (unless caused solely
by Landlord's negligence or the negligence of Landlord's employees, agents,
contractors, or those for whom Landlord is responsible for), occurring in, at or
upon the Demised Premises; and
(d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease. In case any
action or proceeding be brought against Landlord and/or any Superior Lessor or
Superior Mortgagee andlor its or their partners, directors, of ricers, agents
and/or employees by reason of any such claim, Tenant, at its expense, upon
notice from Landlord or such Superior Lessor, shall resist and defend such
action or proceeding by counsel reasonably satisfactory to Landlord and/or such
Superior Lessor or Superior Mortgagee.
Section 14.03. The obligations of Landlord under this Lease shall not be
binding upon Landlord named herein after the sale, conveyance, assignment or
transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building and/or the Land, as the case tnay be, and in the event of any
such sale, conveyance, assignment or transfer, Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, grantee, assignee or other transferee that such purchaser,
grantee, assignee or other transferee has assumed and agreed to carry out any
and all covenants and obligations of Landlord hereunder. In no event shall any
trustee, advisor, beneficiary, director, officer, partner, employee, owner or
principal or any partner or other person or entity comprising the Landlord
(collectively, the Parties-), be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties. The liability of ! landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to Landlords interest in the
Building and/or the Land and Tenant shall not fool; to any other property or
assets of landlord or the property or assets of any of the Parties in seeking
either to enforce Landlord's obligations under this Lease or to satisfy a
judgment for Landlord's failure to perform such obligations.
ARTICLE IS
CONDEMNATION
Section 15.01. If the whole Building or the Demised Premises shall be
taken by condemnation or in a S other manner for which any public or
quasi-public use or put "be (other than in a temporary taking for use, as to
which Section 15.04 shall apply) this Lease and the term and estate hereby
granted shall terminate as of this date of vesting of title on such taking
(herein called the Date of the Taking.), and the Fixed Rent and additional rent
shall be prorated and adjusted as of such date.
Section 15.02. If any part of the Building shall be so taken, this Lease
shall be unaffected by such taking, except that
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(a) Landlord may, at its option. terminate this Lease by giving
Tenant notice to that effect within ninety days (90) after the Date of the
Taking, and
(b)if fifty percent (50%) or more of the Demised Premises shall
be so taken and the remaining area of the Demised Premises shall not be
reasonably sufficient for Tenant to continue the feasible operation of its
business therein, Tenant may terminate this Lease by giving Landlord notice to
that effect within ninety (90) days after the Date of the Taking. This Lease
shall terminate on the date specified in such notice from Landlord or Tenant
which shall be not less than ninety (90) days from the date of such notice, and
the Fixed Rent and additional rent shall be prorated and adjusted as of such
termination date. Upon such partial taking and this Lease continuing in force as
to any part of the Demised Premises, the Fixed Rent and additional rent shall be
adjusted according to the rentable area remaining.
Section 15.03. Landlord shall be entitled to receive the entire award
payment in connection with any taking without deduction therefrom for any estate
vested in Tenant by this Lease and Tenant shall receive no part of such award
except as hereinafter expressly provided in this Article. Tenant hereby
expressly assigns tO Landlord all of its rights, title and interest now or
hereinafter arising in and to every such award or payment. Notwithstanding the
foregoing, in the event of a termination of this Lease by reason of any taking,
Tenant may make separate claims for its fixtures actually taken and for moving
expenses.
Section 15.04. If the temporary use or occupancy of all or any part of
the Demised Premises shall be taken by condemnation or in any other manner for
any public or quasi-public use or purpose during the term of this Lease, Tenant
shall be entitled, except as hereinafter set fond, to receive that portion of
the award or payment for such taking which represents compensation for use and
occupancy of the Demised Premises, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue being responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay in full
the Fixed Rent and additional rent when due. If the period of temporary use of
occupancy shall be extended beyond the expiration date of this Lease, that part
of the award which represents compensation for the use and occupancy of the
Demised Premises (or a pan thereof) shall be apportioned between Landlord and
Tenant so that Landlord shall receive for its own account so much thereof as
shall be allocable to the period after such expiration date, and such portion
thereof as shall be allocable up to and including such expiration date shall be
received, held and applied by Landlord as a trust fund for payment of the Fixed
Rent and additional rent becoming due hereunder during such period.
Section 15.05. In the event of any taking of less than the whole of the
Building and/or the Land which does not result in a termination of this Lease,
or in the event of a taking for a temporary use or occupancy of all or any part
of the Demised Premises which does not result in a termination of this Lease,
Landlord, at its expense, and whether or not any award or awards shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair
the remaining pans of the Building and the Demised Premises (other than those
parts of the Demised Premises which are Tenant's Property) to substantially
their former condition to the extent that the same may be feasible ( object to
reasonable changes which Landlord shall deem desirable) ala so as to constitute
a tenantable Building and Demised Premises
ARTICLE 16
CONDITIONS OF LIMITATION
Section 16.01. This T case and the term and estate hereby granted
arc subject to the limitations that:
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(a) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall file a voluntary petition or answer seeking any
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
(foreign or domestic) or shall make an assignment for benefit of creditors, or
shall seek or consent; or acquiesce of any trustee, receiver or liquidator of
Tenant or of all or any part of the property or assets of Tenant; or
(b) if, within sixty (60) days after the commencement of any proceeding
against Tenant whether by the filing of a petition or otherwise, seeking any
reorganization, arrangement, composition, readjustment, liquidation dissolution
or similar relief under any present or future applicable federal, state or other
state or law (foreign or domestic,) such proceeding shall not have been
dismissed, or if within sixty (60) days after the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's Property,
without the consent or acquiescently of Tenant, such appointment shall not have
been vacated or otherwise discharged; or
(c) if any execution or attachment shall be issued against Tenant or
any of Tenant's Property pursuant to which the Demised Premises shall be taken
or occupied or attempted to be taken or occupied, then Landlord at any time
after the occurrence of any such event, may give Tenant a notice of intention to
end the term of this Lease at the expiration of three (3) days from the day of
the giving of such notice of intention, and upon the expiration of said three
(3) day period this Lease and the term and estate hereby granted, whether or not
the term shall theretofore have commenced, shall terminate with the same effect
as if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 18 hereof
Section 16.02. This Lease and the term and estate hereby granted and
subject to the further limitations that:
(a) if Tenant shall default in the payment of any Fixed Rent or
additional rent, and such default shall continue uncured for five (5) days after
notice by Landlord to Tenant of such default: or
(b) if Tenant shall whether by action or inaction, be in default of any
of its obligations under this Lease other than a default in the payment of any
Fixed Rent or additional rent and such default shall continue and nor be
remedied within fifteen (15) days after notice by Landlord to Tenant of such
default, or, if such default is of such a nature that it cannot with due
diligence be remedied within said period of fifteen (15) days., if Tenant shall
not (I) promptly upon the giving by Landlord of such notice, give notice to
Landlord of Tenant's intentions to institute all steps necessary to remedy such
default, (ii) promptly institute and thereafter diligently and with continuity
prosecute to completion all steps necessary to remedy the default, and (iii)
complete such remedy within a reasonable time (net to exceed 60 days) after the
date of the giving of said notice by Landlord and in any event prior to such
time as would either (x) subject Landlord, or any directors, officers, partners
or employees or agents of Landlord, or any Superior Lessor, or Superior
Mortgagee to prosecution for a crime or (y) cause a default under any Superior
Lease or any Superior Mortgage: or
(c) if there shall be any default by tenant of the provisions of
Article II hereof : or
(d) if Tenant shall vacate or abandon the Demised Premises; or
(e) if there shall be any default by Tenant or any person which,
directly or indirectly, controls, is controlled by, or is under common control
with Tenant) under any other lease with Landlord or any person which directly or
indirectly, controls, is controlled by, or is under common control with Landlord
which shall not be remedied within the applicable grace period, if any, provided
therefore in such other lease.
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then and in any of said events, Landlord may give to Tenant a notice of
intention to terminate this Lease and to end the term and estate hereby granted
at the expiration of three (3) days from the date of the giving of such notice,
and upon the expiration of said three (3) day period, this Lease and the term
and estate hereby granted, whether or not the term shall theretofore have
commenced, shall terminate with the same effect as if such third day were the
expiration date of this Lease, but Tenant shall remain liable for damages as
provided in Article 18 hereof.
Section 16.03. Nothing in Sections 16.01 or 16.02 shall be deemed to
require Landlord to give the notices therein provided for prior to the
commencement of a sublunary proceeding for nonpayment of rent or a plenary
action for recovery of rent on account of any default in the payment of the
same, it being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate
and if Tenant thereafter remains in possession after such a termination, it
shall do so as a holdover tenant.
ARTICLE 17
RE-ENTRY BY LANDLORD
Section 17.01. If Tenant shall default in the payment of any Fixed Rent
or additional rent, and such default shall continue for five (5) days after
notice by Landlord to Tenant of such default, or if this Lease shall terminate
as provided in Article 16 or any other provision of this Lease:
(a) Landlord or Landlord's agent or employees may immediately or
at any time thereafter rc-cater the Demised Premises, or any part thereof,
either by summary dispossess proceedings or by any other suitable action or
proceeding at law, or by force or otherwise (without being liable to indictment.
prosecution or damages therefore) and may repossess the same and dispossess
Tenant and any other person(s) from the Demised Premises and may remove Tenant
or any and all of their property and effects therefrom, without liability for
damages thereto or accountability therefor, to the end that Landlord may have,
hold and enjoy the Demised Premises, provided however, in no event, shall any
such re-entry be deemed an acceptance of surrender under this Lease;
(b) Landlord, at its option, may relet the whole or any
portion(s) of the Demised Premises from time to time, either in the name of the
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, or on or after the date originally provided herein as the expiration
date of the term hereof, at such rentals and upon such other conditions, which
may include concessions and free rent period, as T landlord in its sole
discretion may determine. Landlord shall have no obligation to relet the Demised
Premises or any portion thereof and shall in no event be liable for refusal or
failure to relet the Demised Premises or any portion thereof or, in the event of
any such reletting, for failure to collect any rent due upon such reletting, and
no such refusal or failure shall operate to release or relieve Tenant from any
liability under this Lease or otherwise to affect such liability. Further,
Landlord may make such repairs, improvements, alterations, additions,
decorations and other physical changes in and to the Demised Premises as
Landlord in its sole discretion considers advisable or necessary in connection
with any such reletting or proposed reletting, without releasing or relieving
Tenant from any liability under this Lease or otherwise affecting any such fiat
City; and
(c) If this Lease is terminated under the provisions of Article
16, or if LandJord shall repenter the Demised Premises pursuant to the
provisions of this Article, or in the event of the termination of this Lease, or
of re-entry, by or pursuant to any summary dispossess or other proceedings or
action or any provision of law by reason of default hereunder on the part of the
Tenant:
(i) Tenant shall thereupon pay to Landlord the Fixed Rent
and additional rent payable up to the time of such termination of this Lease, or
of such recovery of possession of the Demised Premises by Landlord, as the case
may be,
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(ii) Tenant shall also pay to Landlord damages as provided
in Article 18, and (iii) Landlord shall be entitled to retain ail monies, if
any, paid by Tenant to Landlord. whether as advance rent, security or otherwise,
but such monies shall be credited by Landlord against any Fixed Rent or
additional rent due from Tenant at the time of such termination or re-entry or,
at Landlord's option, against any damages payable by Tenant under Article 18 or
pursuant to law.
Section 17.02. Tenant, on its own behalf and on behalf of ail persons
claiming through or under Tenant including all creditors, does hereby expressly
waive any and all rights, so far as is permitted by law, which Tenant and all
such persons might otherwise have to:
(a) the service of any notice of intention to re-enter or to
institute legal proceedings to that end;
(b) redeem the Demised Premises or any interest therein;
(c) re-enter or repossess the Demised Premises; or
(d) restore the operation of this Lease after Tenant shall have
been dispossessed by a judgment or by a warrant of any court or judge, or after
any re-entry by Landlord, or after any termination of this Lease, whether such
dispossess, re-entry by Landlord or termination shall be by operation of law or
pursuant to the provisions of this Lease.
Section 17.03. In the event of a breach or threatened breach by Tenant
of any of its obligations under this Lease, Landlord shall also have the right
of injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein. The words "re-entry, "re-entry. and re-entered as used in this Lease
shall not be deemed to be restricted to their technical legal meanings.
ARTICLE 18
LANDLORD'S REMEDIES. DAMAGES
Section 18.01. If this Lease is terminated pursuant to the provisions of
Article 16 or otherwise in accordance with this Lease, or if Landlord shall
re-enter the Demised Premises pursuant to the provisions of Article 17, or in
the event of the termination of this Lease, or of re-entry, by or pursuant to
any summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall pay to Landlord
as damages. at the election of Landlord, either.
(a) a sum which at the time of such termination of this I Race or
at the time of such re-entry by Landlord, as the case may be, represents the
present value of the aggregate amount of the Fixed Rent and the additional rent
under Articles 5 and 6 which would have been payable by Tenant for the period
commencing with such earlier termination of this Lease or the date of such
re-entry, as the case may be, and ending with the date contemplated as the
expiration dare hereof if this Lease had not so terminated or if Landlord had
not so re-entered the Demised Premises for the same period, or
(b) sums equal to the Fixed Rent and the additional rent which,
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due dates
therefor specified herein following such termination or such re-entry and until
the dare contemplated
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as the expiration date hereof if this Lease had not so terminated or if Landlord
had not so re-entered the Demised Premises during said period, provided,
however, that if Landlord shall relet the Demised Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord for such
reletting. such net rents so be determined by first deducting from the gross
rents as and when received by Landlord from such reletting the exposes incurred
or paid by Landlord in terminating this Lease or in recentering the Demised
Premises and in securing possession thereof. as well as the expenses of
reletting, including, without limitation, altering and preparing the Demised
Premises for now tenants, brokers, commissions, legal fees, and all other
expenses properly chargeable against the Demised Premises and the rental
therefrom. it being understood that any such reletting may be for a period
shorter or longer than the remaining term of this Lease and that such reletting
Nay be of all or portion(s) of the Demised Premises either alone or together
with other space in the Building (in which event the net rents therefrom and the
expenses of reletting shall be equitably apportioned); but in no event shall
Tenant be entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this subdivision to a credit in respect of
any net rents from a reletting, except to the extent that such net rents are
actually received by Landlord.
If the Demised Premises or any portion(s) thereof shall be relet by
Landlord for the unexpired portion of the term of this Lease, or any portion
thereof, before presentation of proof of such damages to any coon, commission or
tribunal, the amount of rent reserved upon such reletting shall, prima facie, be
the fair and reasonable rental value for the Demised Premises, or portion
thereof, so relet during the term of the reletting.
Section 18.02. An action or actions for the recovery of such damages. or
any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be:
(a) deemed lo require Landlord to postpone action until the date
when the term of this Lease would have expired if it had nor been so terminated
under the provisions of Article 17, or under any provision of law, or had
Landlord not re-entered the Demised Premises;
(b) construed to limit or preclude recovery by Landlord against
Tenant of any sums or damages to which, in addition to the damages particularly
provided above, Landlord may lawfully be entitled by reason of any default
hereunder on the part of Tenant; or
(c) construed to limit or prejudice the right of Landlord to
prove for and obtain as damages by reason of the termination of this Lease or
re-entrv in the Demised Premises for the default of Tenant under this Lease an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved whether or not such amount be greater, equal to, or less than any of the
sums referred to in Section 18.01.
Section 18.03. In addition, if this Lease is terminated under the
provisions of Article 16, or if Landlord shall re-enter the Demised Premises
under the provisions of Article 17, Tenant agrees that:
(a) the Demised Premises then shall be in the same condition as
that in which Tenant has agreed to surrender the same to Landlord at the
expiration of the term hereof;
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the malting of any alteration or
for restoring or rebuilding the Demised Premises or the Building, or any pan
thereof: and
(c) for the breach of any covens it of Tenant set forth above in
this Section 18.03, Landlord shall be entitled immediately, without notice or
other action by Landlord, to r over, and Tenant shall pay, as and
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for liquidated damages therefor, the cost of complying with such covenant (as
estimated by an independent contractor elected by Landlord).
Section 18.04. If Tenant shall default in the observance or performance
of any term or covenant on its pan to be observed or performed under or by
virtue of any of the terms or provisions in any Article of this Lease, Landlord,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of Tenant,
without notice in the event of an emergency, and in any other event only if such
default shall continue uncured after (i) notice of such default shall have been
given by Landlord to Tenant, and (ii) any applicable grace period for curing
same shall have expired. Tenant shall reimburse Landlord, as additional rent
hereunder, within five (5) days after Landlord's delivery of a statement
therefor for all expenditures made by, or damages or fines sustained or
obligations incurred by I landlord including, without limitation, reasonable
counsel fees and legal fees in instituting, prosecuting or defending any action
or proceedings, due to non-performance or non-compliance with or breach or
failure to observe any term, covenant or condition of this Lease upon Tenant's
part to be kept, observed, performed or complied with.
ARTICLE 19
SERVICES AND EQUIPMENT
Section 19.01. For purposes of this Lease,
(a) the term Business Days. shall mean all days excluding
Saturdays, Sundays and days observed by the City of New York;, the State of New
York or Federal Government as legal holidays, and further excluding holidays
established by any union contract applicable to Building employees, and
(b) the term Business Hours. shall mean the hours from 8:00 a.m.
to 6:00 p.m. of Business Days.
Section 19.02. So long as Tenant is not in default under any of the
covenants of this Lease, Landlord shall, at its cost and expense:
(a) provide necessary elevator facilities during Business Hours
of Business Days and shall have sufficient elevators available at all other
times;
(b) maintain and keep in good order and repair the air
conditioning, heating and ventilating systems installed by Landlord and operate
the aforesaid systems when seasonably required during Business Hours on Business
Days;
(c) provide Building standard cleaning and janitorial services to
the Demised Premises in accordance with the provisions of Exhibit B hereof; and
(d) furnish hot and cold water for lavatory and drinking and
office cleaning purposes.
(e) provide exclusive overtime use of the freight elevator of the
Building for Tenant's move-in at a cost of 550.00 per hour subject to advance
reservation by Tenant in accordance with Landlord's then customary practice.
Landlord shall have no responsibility or liability for the ventilating
conditions and or temperature of the Demised Premises during He hours or days
Landlord is not required to furnish heat, ventilation or air conditioning
pursuant to this section. Landlord has informed Tenant that the windows of the
Demised Premises and the Building
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are or may sealed, and that the Demised Premises may become uninhabitable and
the air therein may become unwholesome during the hours or days when Landlord is
not required pursuant to this paragraph to furnish heat, ventilation or air
conditioning. Any use or occupancy of the Demised Premises during the hours or
days Landlord is not so required to furnish heat, ventilation or air
conditioning to the Demised Premises shall be at the sole risk, responsibility
and hazard of Tenant. Such condition of the Demised Premises shall not
constitute nor be deemed to be a breach or a violation of this Lease or of any
provision thereof, nor shall it be deemed an eviction nor shall Tenant claim or
be entitled to claim any abatement of rent nor snake any claim for any damages
or compensation by reason of such condition of the Demised Premises. Tenant
shall in any event cause all of the windows in the Demised Premises to be kept
closed and shall cause and keep entirely unobstructed all of the vents, intakes,
outlets and grilles, at all times and shall comply with and observe all
regulations and requirements prescribed by Landlord for the proper functioning
of the heating, ventilating and air-conditioning systems. In the event that
Tenant shall require air conditioning, heating or ventilation at times when same
are not required to be furnished by Landlord, Tenant shall give Landlord at
least twenty-four (24) hours' advance notice of such requirement and, if same is
furnished by Landlord, Tenant agrees to pay Landlord's then established charges
therefor as additional rent. Landlord shall have no responsibility or liability
of any kind or nature whatsoever in connection with the installation, operation,
maintenance or repair of Tenant's supplemental autonomous heating, ventilating
and/or air conditioning units, and Tenant agrees so pay Landlord's then
established charges for condenser water if furnished for the operation thereof.
If Tenant requires, uses or consumes water for any other purposes, Landlord may
install a meter or meters or use other means to measure Tenant's water
consumption for all purposes, and Tenant shall reimburse Landlord for the cost
of the meter or meters and the installation thereof, and shall pay for the
maintenance of said mater equipment and/or pay Landlord's cost of other means of
measuring such water consumption by Tenant. Tenant shall reimburse Landlord for
the cost of all water consumed, as measured by said meter or meters or as
otherwise measured, including sewer rents.
Section 19.03. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Article 19
when the necessity therefore arises by reason of accident. emergency, mechanical
breakdown, or when required by any law, order or regulation of any federal,
state, county or municipal authority, or for any other cause beyond the
reasonable control of Landlord. Landlord shall use reasonable efforts to
complete all repairs or other work so that Tenants inconvenience resulting
therefrom may be for as short a period of time as circumstances will permit.
Section 19.04. Tenant shall reimburse Landlord for the cost to Landlord
of removal from the Demised Premises and the Building of so much of ally refuse
and rubbish of Tenant as shall exceed that ordinarily accumulated daily in the
routine of business office occupancy or by any use of the Demised Premises
during other than Business Hours.
Section 19.05. It is expressly agreed that only Landlord or any one or
more persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen, towels, drinking water, ice and other
similar supplies and services to tenants and occupants of the Building. Tenant
agrees to employ such office maintenance contractor as Landlord may from time to
time designate for all waxing, polishing, lamp replacement, cleaning (other than
those cleaning services Landlord is obligated to furnish) and the maintenance
work in the Demised Premise: provided that the quality thereof and the charges
therefor are reasonable' comparable to that of other contractors. Tenant, at its
sole cost and expense, shall cause the Demised Premises to be exterminated on at
least a monthly basis to the satisfaction of Landlord and shall for such
purposes employ exterminators designated by Landlord.
Section 19.06. Landlord acknowledges (subject to this Section 19.06 and
the provisions of this Lease concerning approval of Tenants Work;) that Tenant
intends to install, and, subject to the approval of Tenant's plans and
specifications therefor, Landlord hereby agrees the Tenant may install a
separate supplemental air-conditioning system seating the Demised Premises.
Landlord shall tarnish, if requested by Tenant, condenser water for Tenant's
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separate air-conditioning system and the condenser water valves for Tenant to
connect its system to the Building's condenser water riser at a cost of 5800 per
year for each ton of rated capacity of the air-conditioning equipment billed
quarterly. If after the date of this Lease, the actual cost to Landlord of
furnishing condenser water for Tenant's separate air-conditioning systems in the
Demised Premises shall be increased then the aforesaid costs to Tenant shall be
increased to fairly reflect the amount of the actual increase in cost per ton of
rate capacity incurred by Landlord. Tenant shall provide and maintain at Tenants
cost and expense as part of its separate air-conditioning system, if any, on
each floor a door into the Building shaft through which its separate
air-conditioning system is Connected to the Buildings condenser water conduits
and grating and lights in each shaft, in accordance with Landlord's customary
requirements therefore, and at each floor, an in-line condenser water pump.
Tenant shall not install an air-cooled air-conditioning system.
ARTICLE 20
ACCESS: RIGHT TO CHANGE PUBLIC PORTIONS OF BUILDING
Section 20.01. Except for the space within the inside surfaces of all
walls, hung ceilings, floors, windows (which term "windows" shall include any
film now or hereafter installed thereon by Landlord, at its option, to conserve
energy in the Building) and doors bounding the Demised Premises, all of the
Building, including, without limitation. exterior Building walls, core corridor
walls and doors and any core corridor entrance, any terraces or roofs adjacent
to the Demised Premises and any space in or adjacent to the Demised Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord.
Section 20.02. Landlord reserves the right, and Tenant shall permit
Landlord, (a) to install, erect, use and maintain pipes, ducts and conduits in
and through the Demised Premises and (b) to make such repairs, changes,
alterations, additions and improvements in or to the Demised Premises and/or in
or to any portion(s) of the Building facilities, equipment and systems located
in or passing through the Demised Premises as landlord is required or desires to
make. Landlord shall be allowed to take all materials into and upon the Demised
Premises that may be required in connection therewith without any liability to
Tenant and without the same constituting an eviction of Tenant. in whole or in
part. and without any abatement or reduction in Fixed Rent or additional rent
payable hereunder or any reduction of Tenant's covenants and obligations
hereunder.
Section 20.03. Landlord and its employees and agents shall have the
tight to enter and or pass through the Demised Premises at any time or times
upon reasonable prior notice (which notice Nay be oral) except in the case of an
emergency, to examine the Demised Premises and to show same to actual and
prospective tenants, lessors. mortgagees, purchasers, or lessees of the Land
and/or the Building or any interest therein. If Tenant is not present to open
and permit any entry into the Demised Premises, Landlord or Landlords age may
enter the same whenever such entry may be necessary or permissible by master key
or forcibly and provided reasonable care is exercised to safeguard Tenant's
Property and such entry shall not render Landlord or its agents liable therefor,
nor in any event shall the obligations of Tenant hereunder be affected. In the
event Landlord shall exercise any of the rights granted to it under this Article
20 or otherwise seek or enter to perform work in the Demised Premises, (except
in the event of an emergency), Landlord shall use reasonable efforts to minimize
interference with Tenant's use of the Demised Premises and take reasonable
precautions to protect the Demised Premises and the property therein form
injury, damage or theft. With respect to entering and performing work in the
Demised Premises Landlord shall, to the extent reasonably possible (except in an
emergency), request that a representative of Tenant accompany Landlord in the
Demised Premises.
Section 20.04. If at any time any windows of the Demised Premises are
temporarily darkened or obstructed by reason ~ 'any repairs, improvements,
rigging, maintenance and/or cleaning in . about the Building,
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or if any part of the Building other than the Demised Premises is temporarily or
permanently closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this Lease.
Section 20.05. [Intentionally omitted].
Section 20.06. Landlord reserves the right at any time, without
incurring any liability to Tenant therefor, and without affecting or reducing
any of Tenant's covenants and obligations hereunder, to make such changes,
alterations, additions and improvements in or to the Building and the fixtures
and equipment thereof, as well as in or to the street entrances, doors, halls,
passageways, elevators, escalators and stairways thereof, and other public parts
of the Building, as Landlord shall deem necessary or desirable.
ARTICLE 21
BROKER
Section 21.01. Tenant warrants and represents that it has not dealt with
any broker, finder or agent other than the Broker in connection with this Lease
or the leasing of the Demised Premises, and that Tenant had no conversations or
negotiations with any broker, finder or agent (other than Broker) concerning
this Lease or the leasing of the Demised Premises. Tenant agrees to indemnify
and hold Landlord harmless against and from any claims, costs, expenses and
liabilities, including, without limitation, attorneys' fees and expenses.
imposed upon, incurred by or asserted against Landlord arising out of any breach
of the foregoing representation. Landlord agrees to pay any commission or
compensation to the Broker in connection with this Lease and the leasing of the
Demised Premises pursuant to separate agreements.
ARTICLE 22
SUBORDINATION
Section 22.01. This Lease and all rights of Tenant hereunder are subject
and subordinate to all ground leases, overriding leases and underlying leases of
the Land and or the Building now or hereafter existing (any of the foregoing
being herein referred to as a Superior Lease) and to all mortgages which may
now or hereafter affect the Land, the Building, and/or any Superior Lease (any
of the foregoing being herein referred to as a -Superior Mortgage-) whether or
not such Superior Mortgages shall also cover other lands and/or buildings and or
leases, to each and every advance made or hereafter to be made under such
Superior Mortgages, and to all renewals, modifications, consolidations,
replacements and extensions of such Superior Leases and such Superior Mortgages.
This Section shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge and deliver any certificate to evidence such subordination
that Landlord, the lessor under any Superior Lease, the holder of any Superior
Mortgage, or any of their respective successors in interest may reasonably
request. If Tenant fails to execute, acknowledge or deliver any such instruments
within seven (7) business days after request therefor, Tenant hereby irrevocably
constitutes and appoints landlord as Tenant's attorney-in-fact, coupled with an
interest, to execute any such certificates or certificates for and on behalf of
Tenant.
Section 22.02. At the option of Landlord or any successor landlord,
including the holder of any Superior Mortgage, the purchaser of the mortgaged
premises in foreclosure and any lessor under any Superior Lease who shall
succeed to the Landlords interest herein (collectively the Successor Landlord),
Tenant agrees that neither the fore. closure of a Superior Mortgage. nor the
institution of any suit, action, summary or other proceeding against the
Landlord or any Successor Landlord, nor any foreclosure proceeding brought by
the holder of any such Superior Mortgage to recover possessions of the premises
covered thereby shall by operation of the law or otherwise result
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in cancellation or termination of this Lease or the obligations of the Tenant
hereunder, and at the option and upon the request of any such Successor
Landlord, Tenant covenants and agrees to attorn and recognize such Successor
Landlord as Tenants landlord under this Lease and shall promptly execute and
deliver any instrument that such Successor Landlord may reasonably request to
evidence such attornment. Upon such attornment, this Lease shall continue in
full force and effect as a direct BARE between the Successor Landlord and Tenant
upon all of the terms, conditions and covenants as are set forth in this Lease
except that the Successor Landlord shall not:
(a) be liable for any previous act or omission of Landlord under
this Lease;
(b) be subject to any offset not expressly provided for in this
Lease, which theretofore shall have accrued to Tenant against Landlord; and
(c) be bound by any previous modification of this Lease or by any
previous prepayment of more than one month's Fixed Rent or additional rent,
unless such modification or prepayment shall have been expressly approved in
writing by the lessor of the Superior Lease or the holder of the Superior
Mortgagee. through or by reason of which the Successor Landlord shall have
succeeded IO the rights of Landlord under this Lease.
Section 22.03. In the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction pursuant to the terms of this Lease, Tenant will not exercise any
such right until (a) Tenant has given written notice of such act or omission to
the holders of any Superior Mortgages and the lessors under any Superior Leases
provided such names and addresses shall have been previously furnished to
Tenant, and (b) a reasonable period for remedying such act or omission shall
have elapsed following the giving of such notice during which none of such
parties has given notice to Tenant of its intention to remedy such act or
omission or to cause the same to be remedied and promptly commences and
thereafter continues such remedy with reasonable diligence.
Section 22.04. If, in connection with obtaining financing, a banking,
insurance or other recognized institutional lender shall request reasonable
modifications of this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not, in Tenant's reasonable opinion, materially increase the
obligations of Tenant hereunder including, but not limited to, any increase in
Fixed Rent or additional rent or materially adversely affect the leasehold
interest hereby created or Tenant's use and enjoyment of the Demised Premises or
materially alter the manner in which Tenant conducts its business.
ARTICLE 23
LEGAL PROCEEDINGS: WAIVER OF JURY TRIAL
Section 23.01. If Tenant or Landlord shall bring any anion or suit for
any relief against the other, declaratory or otherwise, arising out of this
Lease or Tenant's occupancy of the Demised Premises, the parties hereto agree to
and hereby waive any right to a trial 'fly duty, and the losing party shall pay
the successful party a reasonable sum for attorney's fees in such action or
suit.
Section 23.02. Tenant hereby waives the right to interpose a
counterclaim in any summary proceeding instituted by Landlord against Tenant or
in any action instituted by Landlord for unpaid Fixed Rent or additional rent
under this Lease.
Section 23.03. In the event the Tenant claims or asserts that the
Landlord has violated or failed to perform a covenant of Landlord not to
unreasonably withheld or delay Landlords consent or approval, or in any case
where Landlord's reasonableness in exercising its judgment is in issue. Tenants
sole remedy shall be an action
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for specific performance, declaratory judgment or injunction and in no event
shall Tenant be entitled to any money damages for a breach of such covenant and
in no event shall Tenant claim or assert arty claims for money damages in any
action or by way of set-off, defense or counterclaim and Tenant hereby
specifically waives the right to any money damages or other remedies. Whenever
Landlord's consent or approval is required under this Lease, and this Lease does
not specify the' such consent or approval shall not be unreasonably withheld or
delayed, Landlord may determine whether to grant or withhold such consent or
approval in its sole and absolute discretion. regardless of whether such refusal
to consent or approve may be deemed arbitrary.
Section 23.04. Whenever this Lease requires Landlord's consent or
approval, Tenant shall reimburse Landlord on demand as a condition to granting
such consent or approval any costs actually incurred in connection with
reviewing the request for consent or approval, including, without limitation;
reasonable attorneys fees.
ARTICLE 24
ESTOPPEL CERTIFICATE
Section 24.01. Tenant agrees, at any time, and from time to time, upon
not less than seven (7) business days prior notice by Landlord, to execute,
acknowledge and deliver to Landlord, a statement in writing addressed to
Landlord or Landlord's designee certifying that this Lease is unmodified and in
full force and effect (or. if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), stating the
dates to which Fixed Rent and additional rent have been paid and stating whether
or not to the best knowledge of the signer of such certificate, there exists
any default in the performance of any covenant. agreement, term, provision or
condition contained in this Lease, and any claim or offset in favor of the
Tenant, and, if any, specifying each such default, claim or offset in favor of
the Tenant, of which signer may have knowledge, and stating whether or not, to
the best knowledge of the signer, any event has occurred which with the giving
of notice or the passage of time or both, would constitute such a default and,
if so, specifying each such event, it being intended that any such statement
delivered pursuant hereto shall be deemed a representation and warranty which
may be relied upon. regardless of independent investigation, by Landlord and
others with whom Landlord may be dealing including, without limitation, any
purchaser or prospective purchaser of the Land and or the Building and or
Landlord's interest under any Superior Lease, and by any mortgagee or
prospective mortgagee of any Superior Mortgage and/or Landlord's interest in any
Superior Lease, and by any landlord under a Superior Lease. If Tenant fails to
execute, acknowledge or deliver any such instruments within seven t7) business
days after request therefor, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenants attorney-in-fact, coupled with an interest, to execute any
such certificate or certificates for and on behalf of Tenant.
Section 24.02. Within ten (10) days of delivery of written request by
Landlord, Tenant shall deliver to Landlord either (a) copies of the most current
financial statements of Tenant and of any guarantor of Tenant's' obligations
under the Lease certified by an independent certified public accountant or (b)
certified copies of public documents filed with the Securities and Exchange
Commission which. disclose Tenants current financial statements or the current
financial statements of any guarantor of Tenants obligations under the Lease and
such further detailed financial information with iespect to Tenant and any such
guarantors as Landlord or the horde. or any Superior Mortgage or Superior Lease
may reasonably request.
ARTICLE 25
SURRENDER OF DEMISED PREMISES
Section 25.01. Upon the expiration or other termination of the term of
this Lease, Tenant shall quit and surrender the Demised Premises n good order
and condition, ordinary wear and tear anti damage by fire or other casualty
excepted, and shall remove all property therefrom, required to be removed as in
Article 8 provided.
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Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease.
Section 25.02. No act or thing done by Landlord or its agents shall be
deemed an acceptance of a surrender of the Demised Premises, and no agreement to
accept such surrender shall be valid unless in writing and signed by Landlord.
Section 25.03. Tenant agrees it shall indemnify and save Landlord
harmless against all reasonable costs, claims, loss or liability resulting from
delay by Tenant in surrendering the Demised Premises upon the expiration or
sooner termination of the term of this Lease, including, without limitation, any
claims made by any succeeding tenant founded on such delay. The parties
recognize and agree that the damage to landlord resulting from any failure by
Tenant timely to surrender the Demised Premises will be substantial, will exceed
the amount of monthly rent theretofore payable hereunder, and will be impossible
of accurate measurement Tenant therefore agrees that if possession of the
Demised Premises is not surrendered to Landlord upon the Expiration Date or
sooner termination of the term of this Lease, then Tenant will pay Landlord as
liquidated damages for each month and for each portion of any month during which
Tenant holds over in the Demised Premises after expiration or sooner termination
of the term of this Lease, a sum (the Holdover Rent.) equal to one and one-half
(1-1/2) times the average of the monthly installments of Fixed Rent and
additional rent which was payable per month under this Lease during the six (o)
months period preceding such expiration or sooner termination of the term of
this Lease, which Holdover Rent shall be in addition to but not duplicative of
all other costs, claims, losses or liabilities which Tenant has agreed to
indemnify Landlord against pursuant to this Section. If Landlord shall, at any
time after the expiration or sooner termination of the term hereof, proceed to
remove Tenant from the Demised Premises as a holdover tenant. Tenant shall pay
the Holdover Rent for the use and occupancy of the Demised Premises during any
holdover period. Tenant's aforesaid obligations shall survive the expiration or
earlier termination of the term of this Lease.
ARTICLE 26
NOTICES
Section 26.01. (a) Except as expressly stated otherwise in this Lease,
any notice or other communication required or permitted to be given or made by
either Landlord or Tenant to the other pursuant to this Lease or pursuant to any
applicable law or requirement of public authority shall be in writing and shall
be delivered to such other party personally, or sent by registered or certified
mail (return receipt requested) or by a nationally recognized overnight courier,
addressed to Tenant at the Building and to Landlord, c/o Heitman Properties
Ltd., 180 North LaSalle Street, Chicago, Illinois 60601, Attention: Property
Management Department. or at such other address designated by such party in
accordance with this Article. The date of receipt of such bill, statement,
notice or communication shall be deemed to be the date of personal delivery or
mailing, provided, however. in the event any party refuses or is unable to
accept delivery of such notice, the date of such notice shall be the first
attempted date of delivery. Either party may, by notice from time to time to the
other company, designate a different address (which, however, shall be located
in the continental United States and shall not be a Post Office Box) for notices
intended for it. Any notice of change of address shall be deemed ., have been
given when received by the party to whom such notice is given. Tenant agrees
that any notice required to be given to Tenant by Landlord under the
provisions of this Lease may be given by Landlord's agents or attorneys, as same
are set forth above, and in such event. such notice shall be deemed to have been
given by Landlord.
(b) A copy of all notices to Tenant and Landlord shall be sent to
the addresses set forth in Article 1. and otherwise in accordance with the
provisions o' this Article.
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ARTICLE 27
SECURITY DEPOSIT
Section 27.01. Tenant has delivered to Landlord the Security Deposit as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease; it is agreed that in the event Tenant
defaults in respect to any of the terms, provisions and conditions of this
Lease, including, but not limited to, the payment of Fixed Rent and additional
rent, Landlord may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any Fixed Rent and
additional rent or any other sum as to which Tenant is in default or for any sum
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency in the reletting of the
Demised Premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. In the event that Tenant
shall fully and faithfully comply with all of the terms, provisions, covenants
and conditions of this Lease, the security shall be returned to Tenant after the
Expiration Date and after delivery of entire possession of the Demised Premises
to Landlord. If Landlord applies or retains any part of the security so
deposited, Tenant, upon demand, shall deposit with Landlord the amount so
applied or retained, so that Landlord shall have the full deposit on hand at all
times during the term of this Lease. In the event of a sale of the Land and
Building or leasing conveyance or transfer of the Building, of which the Demised
Premises form a part, Landlord shall have the right to transfer the security to
the vendee, lessee or transferee and Landlord shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Landlord solely for the return of said security and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new landlord. Tenant further covenants that it will not assign
or encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Landlord nor its successors or assigns shall be bound
by any assignment, encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 28
COVENANT OF QUIET ENJOYMENT
Section 28.01. Landlord covenants that upon Tenant paying all Fixed Rent
and additional rent and observing and performing all the terms, covenants and
provisions of this Lease on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises without interference by any
person lawfully claiming by or through Landlord, subject nevertheless to the
terms and conditions of this Lease and provided, however, that no eviction of
Tenant by reason of the foreclosure of any mortgage now or hereafter affecting
the Demised Premises or by reason of any termination of any ground or underlying
lease to which this Lease is subject and subordinate, whether such termination
is by operation of law, by agreement or otherwise, shall be construed as a
breach of this covenant nor shall any anion by reason thereof be brought against
Landlord, and provided funkier that this covenant shall bind and be enforceable
against Landlord, subject to the terms hereof, only so long as Landlord is the
holder of the Landlord's interest in this Lease and is collecting rent from
Tenant but not thereafter.
ARTICLE 29
PARTNERSHIP TENANT
Section 29.01. If Tenant is a partnership (or is comprised of two (2) or
more persons, individually and as co-partners of a partnership) or if Tenants
interest in this Lease shall be assigned to a partnership (or to two (2) or more
persons, individually and as co-partners of a partnership) pursuant to Article
11 (any such partnership and such persons are referred to i,. this Article as
"Partnership Tenant"), the following provisions of this Article shall apply to
such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint
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and several, (b) each of the parities comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any written instrument which
may hereafter be executed changing, modifying or discharging this Lease, in
whole or in part, or surrendering all or any part of the Demised premised to
Landlord, and by any notices, demands, requests or other communications which
may hereafter be given by Partnership Tenant or by any of the parties comprising
Partnership Tenant, (c) any bills, statements notices, demands, requests or
other communications given or rendered to partnership Tenant or to any or to any
of the parties comprising Partnership Tenant 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 performance of all of the terms, covenants and conditions
of this Lease on Tenant's 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 satisfactory to Landlord,
wherein each such new partner shall assume performance of all the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed (but neither Landlord's failure to request any such agreement nor the
failure of any such new partner to execute or deliver any such agreement to
Landlord shall vitiate the provisions of subdivision (d) of the Article) and (f)
on each anniversary of the Commencement Date, Partnership Tenant shall deliver
to Landlord a list of the names of all partners and their current residential
address.
Section 29.02. If any partner in Tenant is a professional corporation,
Tenant agrees to cause such professional corporation and each individual
shareholder thereof to execute such guaranties and other instruments, agreements
or documents Landlord may reasonably request confirming that such individual
shareholder shall have the same obligations and liability and liability under
this Lease as such shareholder would have had if he, and not such professional
corporation, were a partner in Tenant.
Section 29.03. Tenant and each of the partners/shareholders of Tenant
hereby waive any Requirements of Law that may require that Landlord to first
look to the assets of Tenant for recovery of any sums due hereunder if being the
intention of the parties hereto that Landlord may, at its election, proceed
against the assets of Tenant and/or the assets of the individual
partners/shareholders of Tenant, whether simultaneously, or in such order of
priority as Landlord may determine in its sole discretion. The provisions of
this Article are not intended to mean that Landlord shall have limited or waived
its rights to any other available remedies hereunder or under applicable law as
to Tenant including the right to look to the assets of Tenant for recovery of
any sums do hereunder.
Section 29.04. If any partner/shareholder of Tenant shall retire or
withdraw from the Tenant, such retiring or withdrawing partner/shareholder shall
have no liability to Landlord for the breach of any term, covenant or condition
contained in this Lease occurring after the date of such retirement or
withdrawal or for any act or omission of Tenant occurring after the date of such
retirement or withdrawal, provided that not less than one-half (1/2) of the
number of active partners/shareholders of Tenant as of the Commencement Date
(the "Minimum Amount") shall remain following such withdrawal or retirement. If
fewer than the Minimum Amount of active partnership/shareholders of Tenant shall
remain following such withdrawal or retirement, such or withdrawing
partner/shareholder shall (with all other partner/shareholder shall be released
from liability arising under this Lease from and after the date there are at
least the Minimum Amount of active partners/shareholders of Tenant.
Section 29.05. The partners/shareholders of Tenant hereby consent and
submit to the jurisdiction of any court of record of New York State located in
New York County, or of the United States District Court for the Southern
District of New York and agree that service of process in any action or
proceeding brought by Landlord may be made upon any or all partners/shareholders
by mailing a copy or the summons to such partner(s)/shareholder(s) by mailing a
copy or the summons to such partner(s)/shareholder(s) either at their respective
addresses or at the Demised Premises, by registered or certified mail, return
receipt requested. Notwithstanding the foregoing, the resident of any
partner/shareholder of Tenant shall not be a basis for a choice of venue or for
a motion by a partner/shareholder of Tenant for transfer of venue
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or forum non conveniens pursuant to any rule of common law and or any applicable
state or federal provision or statute, and each partner/shareholder of Tenant
and Tenant hereby waives the right to choose venue or to move for transfer of
venue or forum non conveniens on the grounds that an individual
partner/shareholder of the Tenant resides in a particular jurisdiction.
ARTICLE 30
MISCELLANEOUS
Section 30.01. Tenant shall not move any safe, heavy equipment or bulky
matter in or out of the Building without Landlord's prior written consent which
consent shall not be unreasonably withheld. Tenant shall not place a load upon
any floor of the Demised Premises which exceeds the load per square foot which
such floor was designed to carry and which is allowed by law. Business machines
and mechanical equipment belonging to Tenant which cause noise or vibration that
may be transmitted to the structure of the Building or to the Demised Premises
to such a degree as to be objectionable to Landlord shall be placed and
maintained by the party owning the machines or equipment, at such party's
expense, in settings of cork, rubber or spring type vibration eliminators
sufficient to eliminate noise or vibration.
Section 30.02. Tenant will not clean, nor require, permit, suffer or
allow any window in the Demised Premises to be cleaned from the outside in
violation of Section 202 of the Labor Law or the rules of the Board of Standards
and Appeals or of any other board or body having or asserting jurisdiction.
Section 30.03. If any term, covenant, condition or provision of this
Lease or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease, or the application
thereof to any circumstances or to any person, firm or corporation other than
those as tO which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
Section 30.04. In the event that an excavation should be made for
building or other purposes upon land adjacent to the Building, or should be
authorized to be made, Tenant shall, if necessary, afford to the person or
persons causing or authorized to cause such excavation, license to event upon
the Demised Premises for the purpose of doing such work as shall reasonably be
necessary to protect or preserve the wall or walls of the Building, or the
Building, from injury or damage and to support them by proper foundations,
pinning and/or underpinning.
Section 30.05. Tenant. its servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with the rules and
regulations (the Rules and Regulations.) set forth in Exhibit C attached hereto
and made a part hereof. Landlord shall have the right from time to time during
the term of this Lease to make reasonable changes in and additions to the Rules
and Regulations.
Section 30.06. The failure of Landlord to seek redress for viola An of,
or to insist upon the strict performance of, any covenent or condition of this
Lease, or any of the rules and regulations set forth or hereafter adopted by
Landlord shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. No provision
of this Lease shall be deemed to have been waived by Landlord, unless such
waiver be in writing signed by Landlord. No payment hI Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment of rent be deemed an accord and satisfaction, and Landlord may accept
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<PAGE>
and deposit such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy in this Lease
provided.
Section 30.07. This Lease with the Exhibits annexed hereto, if any,
contains the entire agreement between Landlord and Tenant and shall not be
changed, modified, waived, released, discharged, terminated, in whole or in
part, except in a writing expressly designated for the purpose of effecting such
change, modification, waiver, release, discharge or termination and signed by
both Landlord and Tenant.
Section 30.08. The captions of Articles in this Lease are inserted only
as a matter of convenience and for reference and they in no way define, limit or
describe the scope of this Lease or the intent of any provision thereof.
Section 30.09. The Building may be known as or by such name as Landlord,
in its sole discretion, may determine, and Landlord shall have the right, at any
time and from time to time, to change the name and or the address of the
Building without Tenant's consent.
Section 30.10. Landlord or Landlord's agents have made no
representations or promises with respect to the Building, the Land or the
Demised Premises except as herein expressly set forth and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly sat forth in the provisions of this Lease. The taking of possession of
the Demised Premises by Tenant shall be conclusive evidence that Tenant accepts
the Demised Premises and that the Demised Premises and the Building were in good
and satisfactory condition at the time such possession was so taken.
Section 30.11. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and, except as otherwise
provided herein, their assigns.
Section 30.12. Submission to Tenant by Landlord of the within Lease for
review and execution by Tenant shall confer no rights nor impose any obligations
on either party unless and until both Landlord and Tenant shall have executed
this Lease and duplicate originals thereof have been delivered to the respective
parties hereto.
Section 30.13. This Lease shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York.
Section 30.14. This Lease is secured by a guaranty of even date
herewith (the form of which is attached hereto as Exhibit D) made by the Handex
Corporation. a Delaware corporation (the Guarantor.), of the covenants,
agreements and obligations of Tenant under the T Face to be performed and
observed.
ARTICLE 31
RENEWAL OPTION
Section 31.01. Tenant shall have an option (the "Renewal Option") to
renew the initial term with respect to all (but not less than all) of the
Premises demised under or pursuant to this lease as of the expiration date of
the Term for one additional tetm (the Renewal Term.) of five (5) years,
commencing on the day immediately following the expiration date of the initial
Term, under the following terms and conditions and subject to credit approval by
Landlord:
(1) Tenant gives Landlord written notice of its election to
exercise the Renewal Option no later than the date which is Tree hundred
sixty-five (365) days prior to the expiration date of the Initial Term;
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<PAGE>
(2) Tenant is not in breach or default under this Lease
either on the date Tenant exercises the Renewal Option or at any time through
and including the proposed commencement date of the Renewal Term.
Section 31.02. If Tenant timely and properly exercises the Renewal
Option in accordance with the provisions of Section 31.01:
(1) The Fixed Rent payable for the applicable Renewal Term
shall be based on ninety five (95%) percent of the then prevailing rent for
similar space in this property, but in no event shall the rental rate be less
than the adjusted rental rate payable under this Lease on the expiration date of
the initial Term. For purposes of the preceding sentence, "prevailing rental
rate shall mean the total rental then being quoted by landlord to third party
tenants for reasonably comparable space in the Building for leases approximately
as long, and commencing at approximately the same time, as the applicable
Renewal Term, subject to reasonable adjustment for the desirability of the
applicable Door or area of the Building. If Landlord is not then quoting rental
rates for comparable space, the rates used for purposes of this provision shall
be those rates Landlord would have used if Landlord had quoted such rates.
Landlord shall endeavor to notify Tenant of its determination of prevailing
rental rate (-PRR-) no later than ten (10) months prior to the commencement of
the Renewal Term. In any event, Landlord must notify Tenant of Landlords PRR
within fifteen (15) days of Landlords receipt of a notice from Tenant (which
notice cannot be delivered by Tenant earlier than twelve (12) months prior to
the commencement of the Renewal Term) stating that (a) Landlord has failed to
provide Tenant with Landlord's PRR and Tenant hereby requests the' Landlord
notify Tenant of Landlords PRR within fifteen (15) days of Landlord's receipt of
such notice. Except provided for herein, Landlords good faith determination of
PRR shall be conclusive and binding as to the Landlord and the Tenant. Tenant
shall have fifteen (15) days after Landlord's delivery of notice to Tenant of
Landlord's PRR to deliver notice to Landlord objecting thereto and setting forth
Tenant's determination of Prevailing Rental Rate (Tenants PRR) and, if Tenant
fails to deliver such notice within this fifteen (15) day period, Tenant shall
be deemed to have accepted Landlords PRR. Within fifteen (15) days after receipt
by Landlord of the notice specifying Tenants PRR, Landlord and Tenant shall
mutually select an umpire in this matter (the "PRR Umpire"). The PRR Umpire
shall be a real estate appraiser or consultant having at least fifteen (15)
years continuous experience in the business of leasing, appraising or managing
commercial properties in the Borough of Manhattan, City of New York. The PRR
Umpire shall certify to Landlord and Tenant whether or not, within the last
three (3) years, the PRR Umpire or the company with which the PRR Umpire is then
affiliated, shall have been (x) retained by either Landlord or Tenant or (y)
involved in an adversarial arbitration or litigation proceeding with either
Landlord or Tenant. Landlord and Tenant reserve the right to reject PRR Umpire
proposed by the other party provided that such right is exercised for good cause
within three (3) Business Days of receipt of the above certification. In the
event that Landlord and Tenant shall fail to agree upon the designation of PRR
Umpire within thirty (30) days after delivery of Landlords notice rejecting
Tenants PRR, then either party shall have the right to request that The Real
Estate Board of New York, or if such organization fails to act in accordance
herewith or no longer exists, then the American Arbitration Association (or any
organization which is the successor thereto) select an PRR Umpire in accordance
with the requirements of this Article and such selection shall be conclusive and
binding upon the parties. Within fifteen (15) days after the date of selection
of the PRR Umpire, the PRR Umpire shall hold one (1) hearing during which
Landlord and Tenant shall have an opportunity to present evidence supporting
their determination of the Prevailing Rental Rate. Within ten (10) days after
the date of such hearing, the PRR Umpire shall determine whether Landlords PRR
is the Prevailing Rental Rate or Tenant's PRR ;: :he Prevailing Rental Rate and
shall so notify Landlord and Tenant. Each party shall pay is own counsel fees
and expenses, if any, in connection with any arbitration under this Article and
the parties shall share equally all other expenses and fees of such arbitration,
including the expenses and fees of any PRR Vampire selected in accordance with
the provisions of this Article. The PRR Umpire's determination rendered in
accordance with the provisions of this Article shall be final and binding in
determining the Prevailing Rental Rate. She PRR Umpire shall not have the power
add to, modify, or change any of the provisions of this Lease. In determining
Prevailing Rental Rate, Landlord, tenant and the PRR Umpire shall give effect to
the other terms and conditions of this Lease. but shall not take into account or
give any credit or allowance to Tenant for He value of leasehold improvements
made by
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<PAGE>
or for the benefit of Tenant. If for any reason the Prevailing Rental Rate shall
not have been determined prior to the commencement of the Renewal Term, then
until the Prevailing Rental Rate and, accordingly, the Fixed Rent shall have
been finally determined, the Fixed Rent shall be equal to the average of
Landlord's PRR and Tenant's PRR Upon final determination, an appropriate
adjustment shall be made reflecting such final determination, and Landlord or
Tenant, as the case may be, shall pay the other any overpayment or deficiency,
as the case may be, from the commencement of the Renewal Term to the date of
such final determination.
(2) Tenant shall have no further options to renew the
initial Term of this Lease beyond the expiration date of the Renewal Term crated
by exercise of the second Renewal Option.
(3) Landlord shall not be obligated to perform any leasehold
improvement work in the Premises or give Tenant al allowance or other economic
concession for any such work or for any other purposes.
(4) Except as otherwise provided herein, all of the terms
and provisions of this Lease shall remain the same and in full force and effect
during the Renewal Term.
Section 31.03. If Tenant exercises a Renewal Option, Landlord and Tenant
shall execute and deliver an amendment to this Lease reflecting the lease of the
Premises by Landlord to tenant for the applicable Renewal Term on the terms
provided above, which amendment (or new lease, as the case may be) shall be
executed and delivered prior to the commencement date of the applicable Renewal
Term.
Section 31.04. Any unexercised Renewal Option shall automatically
ternunate and become null and void and of no force or effect upon the earlier to
occur of (1) the expiration or termination of this Lease. (2) the termination of
the Tenants right to possession of the Pretruses, (3) the assignment of this
Lease by Tenant, (4) the sublease by Tenant of all or part of the Premises to
anyone other than an affiliate of Tenant, or (5) the failure of Tenant to timely
or properly exercise such Renewal Option or (o) the default by Tenant under the
Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first and above written.
Landlord: JMB - 40 BROAD STREET ASSOCIATES
By: JMB Income Properties Ltd. - Xll,
General Partner
By: JMB Realty Corporation, Managing
General Partner
By:
----------------------------------
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<PAGE>
Tenant: NEW HORIZONS COMPUTER LEARNING CENTER
OF METROPOLITAN NEW YORK, INC.
By:
----------------------------------
Federal I.D. No.
---------------------
-45-
EXHIBIT 21.1
NEW HORIZONS, WORLDWIDE, INC.
Subsidiaries:
New Horizons Education Corporation
New Horizons Computer Learning Centers, Inc.
New Horizons Computer Learning Center of Chicago, Inc.
New Horizons Computer Learning Center of Metropolitan New York, Inc.
New Horizons Computer Learning Center of Santa Ana, Inc.
New Horizons Computer Learning Center of Cleveland, Ltd., L.L.C.
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<PERIOD-START> JAN-01-1997
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