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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JANUARY 29, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO ____________.
COMMISSION FILE NO. 0-21690
SUNGLASS HUT INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0667471
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
255 ALHAMBRA CIRCLE, CORAL GABLES, FLORIDA 33134
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (305) 461-6100
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
NONE NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK (PAR VALUE $.01 PER SHARE)
(TITLE OF CLASS)
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURES
(TITLE OF CLASS)
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. [ ]
The aggregate market value of Common Stock held by non-affiliates of
the Registrant on April 14, 2000 was $309,404,135, based on a $7.78 average of
the high and low sales prices for the Common Stock on such date. For purposes of
this computation, all executive officers and directors have been deemed to be
affiliates. Such determination should not be deemed to be an admission that such
executive officers and directors are, in fact, affiliates of the Registrant. The
number of shares outstanding of the Registrant's Common Stock on April 14, 2000
was 42,800,165 shares.
DOCUMENTS INCORPORATED BY REFERENCE
The information called for by Part III is incorporated by reference to the Proxy
Statement for the Annual Meeting of Shareholders of the Company, definitive
copies of which will be mailed on or before May 5, 2000.
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<PAGE>
SUNGLASS HUT INTERNATIONAL, INC.
TABLE OF CONTENTS
PAGE
----
PART I
Item 1. BUSINESS......................................................... 5
Item 2. PROPERTIES....................................................... 7
Item 3. LEGAL PROCEEDINGS................................................ 7
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS ............. 9
PART II
Item 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS.......................................... 11
Item 6. SELECTED FINANCIAL DATA.......................................... 12
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.......................... 14
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK.................................................. 19
Item 8. FINANCIAL STATEMENTS............................................. 20
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.......................... 42
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT .................. 42
Item 11. EXECUTIVE COMPENSATION........................................... 42
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT............................................... 42
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS................... 42
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K.................................................. 42
<PAGE>
PART I
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995 (the "Reform Act"), Sunglass Hut International,
Inc. (the "Company") is hereby providing cautionary statements identifying
important factors that could cause the Company's actual results to differ
materially from those projected in forward-looking statements (as such term is
defined in the Reform Act) of the Company made by or on behalf of the Company
herein or which are made orally, whether in presentations, in response to
questions or otherwise. Any statements that express, or involve discussions as
to expectations, beliefs, plans, objectives assumptions of future events or
performance (often, but not always, through the use of words or phrases such as
"will result," "are expected to," "will continue," "is anticipated," "plans,"
"intends," "estimated," "projection" and "outlook") are not historical facts and
may be forward-looking and, accordingly, such statements involve estimates,
assumptions and uncertainties which could cause actual results to differ
materially from those expressed in the forward-looking statements. Such
uncertainties include, among others, the following factors:
MERCHANDISING, CONCENTRATION OF SUPPLIERS AND POTENTIAL IMPACT OF
CONSOLIDATION OF SUNGLASS/WATCH MANUFACTURING INDUSTRY. The Company's success
depends to a large degree on its ability to provide a merchandise selection that
appeals to customers' changing desires and that appropriately reflects
geographical or other demographic differences in brand and style preferences. A
failure by the Company to identify or take advantage of emerging fashion trends
could have a material adverse effect on its results of operations. Moreover, the
Company has no long-term purchase contracts or other contractual assurance of
continued supply, pricing or access to new products. The inability to obtain
merchandise from one or more key vendors on a timely basis, or a material change
in the Company's current purchase terms, could have a material adverse effect on
its results of operations. In fiscal 1999, Luxottica (including RayBan, Revo,
Killer Loop, Arnette, Giorgio Armani and other brands) and Oakley, the Company's
largest suppliers, accounted for approximately 24.6% and 23.9%, respectively, of
the Company's total merchandise purchases. On June 28, 1999, Luxottica Group SpA
completed the purchase of the assets and liabilities of Bausch & Lomb's eyewear
business (which included Ray Ban, Revo, Killer Loop, Arnette and other brands).
There can be no assurance that this transaction or other vendor consolidation or
other changes in the sunglass or watch manufacturing industry will not
materially impact the Company's purchase terms, continued supply, pricing,
access to new products or otherwise negatively impact its future results of
operations. The market for the Company's products is also increasingly subject
to the risk of changing fashion trends, and the demand for certain styles can
change. Accordingly, there can be no assurance that the Company will not be
subject to increasing limitations on product returns in the future.
RISKS OF DEVELOPING EXCLUSIVE BRAND PRODUCTS. The Company's efforts to
develop exclusive brands of products will increase the Company's exposure to
risks of inventory obsolescence and other exposures normally associated with
manufacturers. Accordingly, in the event that a particular style of product does
not achieve widespread consumer acceptance, the Company may be required to take
significant markdowns, which could have a material adverse effect on its gross
profit margin and other operating results. Additionally, there can be no
assurance that the Company's efforts to develop exclusive brand products will
not negatively impact its relationship with its existing vendors of branded
merchandise. The Company's efforts to develop exclusive brands may also involve
other risks that could have a material adverse effect on the Company, including
diversion of management's attention from the Company's core business and
difficulties with the hiring, retention and training of key personnel. Moreover,
the Company's exclusive brand development plans may include entry into joint
venture and/or licensing/distribution arrangements, which may limit the
Company's control of these operations.
RISKS OF NEW SPECIALTY STORE CONCEPTS, DISTRIBUTION CHANNELS AND
INTERNATIONAL OPERATIONS. The Company's growth plans include expansion of
recently developed specialty store concepts and may include the future
development of additional concepts. The Company opened its first Watch Station
store, a watch specialty store, in fiscal 1996 and during fiscal 1998 initiated
a test and subsequent roll-out (in fiscal 1999) of combination sunglass and
watch stores ("Combo stores"). In fiscal 1999, the Company converted and/or
opened 169 Combo store locations. Accordingly, these operations will be subject
to the numerous risks of establishing new business enterprises, including
unanticipated operating problems, ability to secure suitable new store sites on
a timely basis and on satisfactory terms, ability to obtain suitable use clause
changes on a timely basis and on satisfactory terms, lack of experience and
customer acceptance, inventory obsolescence risks, significant competition from
existing and new retailers and related retail channels of distribution, and the
extent of existing relationships between such retailers and
manufacturers/distributors. Although the Company has generally experienced
favorable sales results in Combo store conversions to date, these results are
based on a limited time period and may vary significantly in the future. There
can be no assurance that the Company's recently developed specialty store
concepts will be able to duplicate the growth of the Company's Sunglass Hut
stores or that they will achieve sales and profitability levels that justify the
Company's investment therein. Additionally, the Company's growth plans may
include the development and expansion of additional specialty store concepts,
and there can be no assurance that any newly developed specialty store concepts
will achieve sales and profitability levels that justify the investment therein.
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The Company's planned expansion of its e-commerce activity subjects the
Company to numerous risks of entering new distribution channels, including
unanticipated operating problems and start-up costs, lack of experience and
customer acceptance and significant competition from existing and new retailers.
In addition, the use of the Internet to sell goods and services has developed
only recently, and there can be no assurance that a sufficiently large number of
consumers will begin to use the Internet as a medium of commerce. Moreover there
can be no assurance that Internet sales will not cannibalize sales from the
Company's store locations. Lastly, there can be no assurance that the Company's
e-commerce activities will achieve sales and profitability levels that justify
the Company's investment therein.
Expansion of any of the previously mentioned concepts or any other
related concepts, and the entry into any new distribution channels also involve
other risks that could have a material adverse effect on the Company, including
(i) diversion of management's attention from the Company's core business, (ii)
difficulties with the hiring, retention and training of key personnel, (iii)
risks associated with higher dependence on holiday season sales, (iv) lower
gross margin, and (v) risks associated with unanticipated problems or legal
liabilities.
There can be no assurance that the Company will be able to successfully
execute other components of its growth strategies. The Company's current
international operations and any future international expansion subject the
Company to certain risks and limitations not associated with its current U.S.
operations, including (i) the uncertainty of market acceptance of specialty
retailers and/or the Company's product offerings, (ii) the Company's ability to
hire and train local personnel, (iii) the Company's dependence on local business
conditions and practices, (iv) foreign currency losses, (v) the impact of
foreign taxes, and (vi) foreign investment restrictions and limitations.
Moreover, the Company's international expansion may include entry into joint
venture and/or franchise arrangements, which may limit the Company's control of
operations.
IMPACT OF DISPOSAL OF DISCONTINUED OPERATIONS. In January 1998, the
Company adopted a plan to discontinue its EyeX optical segment and substantially
completed the disposition in fiscal 1998. During fiscal 1999, the Company
recorded $1.2 million ($738,000, net of taxes ) of additional exit costs
associated with this segment. The Company's consolidated financial statements
include an allowance for estimated loss from disposition of this segment. As the
Company completes its disposal of EyeX, certain matters may arise which could
result in additional gains or losses to be recognized by the Company.
UNCERTAINTIES OF LITIGATION. In October 1999, a class action lawsuit
was filed against the Company in the United States District Court in the Eastern
District of Missouri. The lawsuit alleges, among other things, that the Company
violated state and Federal wage and overtime laws. The Company is in the process
of investigating and responding to the charges. The outcome or effect of this
litigation on the Company's operating results cannot be predicted at this time.
However, there can be no assurance that an unfavorable outcome will not have an
adverse effect on the Company's operating results.
ABILITY TO MANAGE GROWTH. The Company has opened a significant number
of new locations in the past several years. However, there is no assurance that
the Company will sustain the growth in the number of stores and revenues that it
has achieved historically. Moreover, there can be no assurance that the
Company's management and financial controls, executive personnel and other
corporate support systems will be adequate to manage the increase in the size
and scope of the Company's business in future periods. The continued growth of
the Company is dependent, in large part, upon the Company's ability to open and
operate new stores and convert selected existing stores into a new Combo store
format on a profitable basis, which in turn is subject to, among other things,
the Company's ability to secure suitable store sites and/or obtain suitable use
clause changes on a timely basis and on satisfactory terms, the Company's
ability to hire, train and retain qualified management and other personnel, the
availability of adequate capital resources and the successful integration of new
stores into existing operations. There can be no assurance that, because of
demographic or other reasons, the Company's new/converted stores will achieve
sales and profitability comparable to the Company's existing stores. In
addition, there can be no assurance that the opening of new/converted locations
or concepts will not cannibalize sales at existing locations.
Although the Company has acquired competitors in the past and considers
acquiring additional smaller chains of specialty retailers on an ongoing basis,
there can be no assurance that the Company will be able to consummate
acquisitions on satisfactory terms or that any acquired operations will be
successfully integrated.
DEPENDENCE ON KEY PERSONNEL. The Company's success and ability to
properly manage its growth depends to a significant extent both upon the
performance of its current senior management team and its ability to attract,
hire, motivate and retain additional qualified management personnel in the
future. The inability to recruit and retain such additional personnel, or the
loss of service of any of the Company's current executive officers, could have a
material adverse impact on the Company.
4
<PAGE>
SEASONALITY. The Company has historically experienced and expects to
continue to experience seasonal fluctuations in its net sales and results of
operations. The Company has generally experienced lower net sales and operating
results during the third quarter of each fiscal year (and to a lesser extent,
during the first and fourth quarters of each year) and the Company expects this
trend may continue for the foreseeable future. The Company's quarterly results
of operations may also fluctuate significantly as a result of a variety of
factors, including the timing of store openings and closings, and the timing of
sales contributed by new stores and new concepts such as Combo stores and new
distribution channels, such as the Internet.
POSSIBLE VOLATILITY OF STOCK AND NOTE PRICES. The market prices of the
Company's common stock and convertible subordinated notes are subject to
significant volatility caused by factors such as quarterly fluctuations in the
financial results of the Company, monthly comparable store sales results,
changes in financial estimates by securities analysts, shortfalls in earnings or
sales below analysts' expectations, the overall economy and the financial
markets. In addition, the common stock is quoted on the NASDAQ National Market
and the notes are traded on the NASDAQ SmallCap Market, which stock markets have
experienced, and are likely to experience in the future, significant price and
volume fluctuations which could adversely affect the market price of the common
stock and the notes without regard to the operating performance of the Company.
ANTI-TAKEOVER EFFECT OF CERTAIN PROVISIONS OF THE COMPANY'S ARTICLES OF
INCORPORATION AND BYLAWS. Certain provisions of the Company's Articles of
Incorporation and Bylaws may be deemed to have anti-takeover effects and may
delay, defer or prevent a takeover attempt that a stockholder might consider in
its best interest. These provisions (i) classify the Company's Board of
Directors into three classes, each of which will serve for different three-year
periods, (ii) provide that only the Board of Directors or Chief Executive
Officer may call special meetings of the stockholders, and (iii) establish
certain advance notice procedures for nomination of candidates for election as
directors and for stockholder proposals to be considered at stockholders'
meetings. The Company is also subject to certain provisions of the Florida
Business Corporation Act, which may deter or frustrate takeovers of Florida
corporations.
*********
The Company cautions that the risk factors described above could cause
actual results or outcomes to differ materially from those expressed in any
forward-looking statements of the Company made by or on behalf of the Company.
Any forward-looking statement speaks only as of the date on which such statement
is made, and the Company undertakes no obligation to update any forward-looking
statement or statements to reflect events or circumstances after the date on
which such statement is made or to reflect the occurrences of unanticipated
events. New factors emerge from time to time and it is not possible for
management to predict all of such factors. Further, management cannot assess the
impact of each such factor on the Company's business or the extent to which any
factor, or combination of factors, may cause actual results to differ materially
from those contained in any forward-looking statements.
ITEM 1. BUSINESS
COMPANY PROFILE
Sunglass Hut International, Inc. ("Sunglass Hut" or the "Company") is
the world's largest specialty retailer of sunglasses and one of the world's
largest specialty retailer of popular price ($50 - $500) watches with
approximately 1,900 locations worldwide. The Company's stores operate under the
Sunglass Hut International and Watch Station International tradenames.
Additionally, during fiscal 1998, the Company initiated a test and subsequent
rollout of a new store concept that combines sunglasses and watches in a unified
format ("Combo stores").
During fiscal 1999, the Company opened 14 Sunglass Hut stores, 3
licensed departments and 8 Watch Station stores. Additionally, the Company
opened and/or converted 169 Combo stores. The Company also closed 175
unprofitable or marginal locations. As a result, the Company had 1,586 specialty
sunglass, 111 Watch Station and 195 Combo stores as of fiscal yearend 1999.
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The following table shows the historical composition of the Company's
locations:
<TABLE>
<CAPTION>
FISCAL
-----------------------------------------------------------------
STORE LOCATION 1999 1998 1997 1996 1995
- -------------- ----------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Sunglass Hut stores 1,487 1,729 1,876 1,881 1,686
Licensed sunglass departments 99 130 213 155 38
----------- ---------- --------- ---------- -- ---------
Sunglass specialty subtotal 1,586 1,859 2,089 2,036 1,724
Watch Station stores 111 118 77 51 --
Combo stores 195 28 -- -- --
----------- ---------- --------- ---------- ---------
Total 1,892 2,005 2,166 2,087 1,724
=========== ========== ========= ========== =========
</TABLE>
At January 29, 2000, the Company operated 1,214 stores and 97 licensed
departments throughout the United States as well as 105 stores and two licensed
departments in Canada, 107 stores in Australia, seven stores in New Zealand,
three stores in Singapore, 32 locations throughout seven countries in Europe, 12
stores in Puerto Rico, four stores in the U.S. Virgin Islands and three stores
in other Caribbean locations for a total of 1,586 specialty sunglass locations.
At yearend, the Company also operated 111 Watch Station stores (in the United
States) and 195 Combo stores (118 in the United States, 49 in Europe and 28 in
the Pacific).
The Company believes that the flexibility of its specialty store
formats and its attractive unit level economics provide it with access to a wide
range of leasing opportunities which will facilitate its continued expansion.
The Company is pursuing opportunities to continue to expand sunglass, watch and
Combo store specialty locations both domestically and internationally and plans
to open approximately 80 locations and convert approximately 200 locations to
Combo stores in fiscal 2000.
RECENT DEVELOPMENTS
During fiscal 1999, the Company initiated a roll-out of its Combo store
format, opening and/or converting 169 Combo store locations. Currently, the
Company has 195 Combo stores in operation and plans to open approximately 50 new
Combo store locations and convert approximately 200 existing stores to the Combo
store format in fiscal 2000.
The Company commenced its e-commerce efforts during fiscal 1999 through
the re-launch of its flagship website, www.sunglasshut.com and the development
of Shades.com and SwissArmyDepot.com. The Company plans to leverage its
leadership position in the "bricks and mortar" sale of sunglasses and watches by
establishing a leading on-line website that attracts and satisfies new on-line
customers as well as meets the needs of its traditional customers.
During fiscal 1999, the Company closed 175 unprofitable or marginal
store locations and substantially completed store closures under restructuring
plans adopted in prior years.
During fiscal 1999, the Company continued to exercise its Board
approved authority to repurchase shares of stock in the open market. During the
fiscal year, the Company repurchased 4.5 million shares of common stock at a
cost of $44.9 million, and since the inception of the program in March 1998, the
Company has repurchased a total of 12.8 million shares at a cost of $95.1
million. In March 2000, the Company's Board of Directors approved and authorized
the repurchase of an additional 8.0 million shares of common stock beyond the
purchases to date, bringing the total authorization under the plan to 20.8
million shares.
On March 30, 2000, the Company received a commitment from Fleet
National Bank to provide a three year senior secured revolving credit facility
that provides for borrowings of up to $150 million. The Company expects to
finalize this credit facility during the second quarter of fiscal 2000.
COMPETITION
The Company is the largest specialty retailer of sunglasses and one of
the largest specialty retailer of popular price ($50 - $500) watches in the
world. However, both the retail sunglass and watch businesses are highly
competitive and the Company competes with many different types of retail stores
and "e-tailers". Since retail stores generally serve individual or local
markets, competition is fragmented and varies substantially from one location or
geographic area to another. Competitors in the over $30 sunglass market include
chain and individual sunglass specialty stores, department stores, optical
chains and sporting goods specialty stores. Catalog showrooms, warehouse clubs,
discount stores, drug stores and other mass merchandisers that currently compete
primarily in the under $30 segment of the retail sunglass industry also have a
significant market share in the over $30 segment and could increase competitive
pressure in this segment in the future. Competitors in the retail watch market
include chain and individual watch specialty stores, department stores, catalog
showrooms and jewelry stores. Certain of these competitors may have greater
industry experience or financial and other resources than the Company.
Management believes that the primary elements of
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competition in specialty stores are breadth, quality and in-stock availability
of merchandise selection, price, level of customer service and convenience of
store location, and that its specialty store concepts compete successfully on
the basis of such factors.
EMPLOYEES
At January 29, 2000, the Company employed 9,174 persons, of whom 3,689
were full-time employees and 5,485 were part-time employees. The number of
part-time associates employed by the Company fluctuates depending on seasonal
needs. None of the Company's domestic employees are covered by collective
bargaining agreements, and management believes that the Company's relations with
its employees are good.
SERVICEMARKS AND TRADEMARKS
The names "Sunglass Hut International", "Watch Station" and "Sungear"
are servicemarks registered in the United States Patent and Trademark Office. As
of fiscal yearend 1999, the "Sunglass Hut International" servicemark and its
logo were registered with approximately 34 legal jurisdictions worldwide. The
Company has also taken active steps to register its "Watch Station", "SunGear",
"Code" and "Torque" servicemarks on a worldwide basis. Management believes that
these servicemarks are an integral element of the Company's marketing strategy.
Although the Company has a number of other registered servicemarks, management
does not believe that these are material to the Company's operations.
FINANCIAL INFORMATION ABOUT FOREIGN AND DOMESTIC OPERATIONS
Management operates and organizes itself according to business units,
which consist of the Company's different specialty store concepts, across
geographic locations. Accordingly, the North America segment (comprised of the
United States, Canada and the Caribbean) includes sunglass, watch and Combo
retail operations in this geographic market. The Other segment includes the
sunglass, watch and Combo retail operations in other geographic locations,
primarily Europe and Australia. In fiscal year 1999, the Company opened six and
15 new stores in Europe and Australia, respectively. See Note 14 of Notes to
Consolidated Financial Statements for additional information with respect to
foreign and domestic operations.
ITEM 2. PROPERTIES
The Company currently leases all of its existing store locations and
expects that its policy of leasing rather than owning will continue. The
Company's leases generally provide for initial lease terms ranging up to seven
years for kiosks and up to 10 years for in-line stores. Management believes that
the use of short-term leases enhances the Company's flexibility to pursue
various expansion opportunities resulting from changing market conditions. Rent
generally includes a percentage of the store's sales volume and/or a fixed
minimum base rent. The majority of lease rental payments are also subject to
annual increases for taxes, common area maintenance and insurance.
As current leases expire, the Company believes that it will be able
either to obtain lease renewals, if desired, for present store locations, or to
obtain leases for equivalent or better locations in the same general area. To
date, the Company has not experienced significant difficulty in either renewing
leases for existing locations or securing leases for suitable locations for new
stores.
The Company leases its corporate headquarters in Coral Gables, Florida.
The main lease has a ten-year term expiring in 2004 and the Company has entered
into several additional leases with varying expiration dates. The Company has a
five-year lease (expiring in 2001) with two renewable options of five years each
at its 92,000 square foot Atlanta distribution center.
See Note 11 of Notes to Consolidated Financial Statements for
additional information with respect to the Company's operating leases.
ITEM 3. LEGAL PROCEEDINGS
In September 1999, a class action lawsuit was filed against the Company
in the United States District Court in the Eastern District of Missouri. The
lawsuit alleges, among other things, that the Company violated state and Federal
wage and overtime laws. The Company is in the process of investigating and
responding to the charges. The outcome or effect of this litigation on the
Company's operating results cannot be predicted at this time.
In January 1997, a class action securities lawsuit was filed against
the Company and certain of its current and former executive officers in the U.S.
District Court of the Southern District of Florida. The lawsuit alleges, among
other things, that the Company and certain of its officers made materially false
and misleading statements regarding the Company's business performance and
prospects. The Company believes that the lawsuit has no basis, and intends to
vigorously defend the action. Although the ultimate outcome of the lawsuit
cannot be predicted, management does not believe the lawsuit will have a
material adverse effect on
7
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the financial position, results of operations or cash flows of the Company.
However, there can be no assurance as to the ultimate resolution of this matter.
There are no other significant legal proceedings pending against the
Company.
8
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ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the
fourth quarter of the Company's 1999 fiscal year.
EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
YEAR FIRST
NAME(1) PRESENT POSITION(2) ELECTED AS AN OFFICER AGE
- ------- ------------------- --------------------- ---
<S> <C> <C> <C>
John X. Watson*(3) President, Chief Executive Officer 1998 46
Eric J. Schumann*(4) Executive Vice President, General Merchandising Manager 1997 51
Enrique M. Arrata*(5) Senior Vice President, International and MIS 1998 53
Roger L. Kehm*(6) Senior Vice President, Real Estate and Construction 1999 52
Stephen P. Lundeen*(7) Senior Vice President, Human Resources 1998 52
Larry G. Petersen* Senior Vice President, Chief Financial Officer 1994 52
Terry G. Pritikin*(8) Senior Vice President, Stores, North America 1998 51
Robert J. Anthony*(9) Vice President, Electronic Commerce 1999 39
Thomas J. Carey*(10) Vice President, Marketing 1999 42
Pedro E. Carreras(11) Vice President, Distribution 2000 45
Pamela J. Garrett(12) Vice President, Store Administration 2000 41
James P. Gould*(13) Vice President, International Planning and Development 1998 40
Paul E. Jones(14) Vice President, Field Service Center Operations 1999 31
Carol A. Montgomery*(15) Vice President, Exclusive Brands 1998 45
Richard W. Mueller(16) Vice President, Merchandising, Planning and Control 1999 44
David J. Naitove(17) Vice President, Total Compensation 1999 49
George L. Pita* Vice President, Finance 1994 38
Jill Witter*(18) Vice President, General Counsel 1999 45
<FN>
- ---------------------------
(1) Officers designated as Executive Officers for purposes of Section 16(a) of
the Securities Exchange Act of 1934 are designated by *.
(2) All officers serve at the pleasure of the Board of Directors.
(3) Mr. Watson was appointed President, Chief Executive Officer and a Director
of the Company in January 1998. From July 1995 until his appointment, Mr.
Watson was employed by Reebok International, Ltd. where he served as Senior
Vice President--Apparel and Senior Vice President--Strategic
Marketing/Planning. From 1992 to 1995, Mr. Watson was employed by Esprit de
Corp GmbH where he served as President and Chief Operating Officer in
Dusseldorf, Germany.
(4) Mr. Schumann was appointed Executive Vice President, General Merchandising
Manager, in September 1997. Prior to joining the Company, Mr. Schumann was
employed by Petrie Stores as Senior Vice President and General
Merchandising Manager from December 1994 to December 1996. From July 1992
to December 1994, he was employed by Liz Claiborne where he served as
President of the Jewelry Division.
(5) Mr. Arrata was Chief Financial Officer, Chief Information Officer, and
Managing Director of Esprit GmbH from March 1992 to October 1995. From
October 1995 to March 1998, Mr. Arrata was Chief Operating Officer and
Managing Director, President of all subsidiaries of Esprit holdings. Mr.
Arrata served as a consultant to the Company from March 1998 until
appointment of his current position in October 1998.
(6) Mr. Kehm was Executive Vice President of The Athlete's Foot Group, Inc.
from February 1985 until appointment of his current position in June 1999.
(7) Mr. Lundeen was Senior Vice President, Human Resources, of Eddie Bauer,
from January 1994 until appointment of his current position in August 1998.
(8) Mr. Pritikin was Vice President, Stores for Charming Shoppes, Inc. from
November 1994 to December 1998 and joined the Company in December 1998.
From March 1994 to November 1994, Mr. Pritikin served as President,
Specialty Stores of Tommy Hilfiger U.S.A. Prior to that time, Mr. Pritikin
was Executive Vice President, Stores, Lerner Division, Limited, Inc.
9
<PAGE>
(9) Mr. Anthony was Senior Director of Market Development from May 1993 to July
1995, Director, Media and Technology from July 1995 to March 1998, and Vice
President, New Venture Development at Electronic Data Systems from March
1998 until his current appointment.
(10) From December 1994 to January 1996, Mr. Carey was Senior Vice President and
Group Director of Fogerty Klein & Partners. From January 1996 to September
1998, Mr. Carey was Vice President-Marketing for Builders Square, Inc. From
September 1998 until appointment to his current position in December 1999,
Mr. Carey was Vice President of Marketing at Bloomingdale's Department
Stores.
(11) Mr. Carreras has been employed by the Company since November 1992. He
served as Director of Distribution for the Company until his appointment to
his current position in April 2000.
(12) Since February 1992, Ms. Garrett has served in various capacities for the
Company, the most recent of which was Director of Operations for the North
American store group from February 1999 until her appointment to her
current position in April 2000.
(13) Prior to joining the Company, Mr. Gould was Group Treasurer, Sola
International, Inc. from August 1994 to May 1998. From May 1991 to July
1994, Mr. Gould was Director of Strategic Planning of Esprit de Corp GmbH.
(14) From October 1992 until February 1997, Mr. Jones was Regional Manager Asset
Protector of Mervyn's, a division of Dayton Hudson Stores. From February
1997 to September 1999, Mr. Jones was Director, Loss Prevention. He assumed
his current position in September 1999.
(15) Between October 1996 and October 1998, Ms. Montgomery was engaged in
consulting and advisory work in the eyewear and skin care industry. In that
capacity, Ms. Montgomery was a consultant for the Company from June 1998
until October 1998 when she joined the Company. Prior to that Ms.
Montgomery was Chairman and Chief Executive Officer of Revo Incorporated, a
division of Bausch and Lomb.
(16) Mr. Mueller was Vice President-MPC of the Sharper Image from August 1984 to
July 1998. Mr. Mueller served as Senior Manager and Director of MPC from
July 1998 to March 1999 when he assumed his current position.
(17) Mr. Naitove was engaged as a Compensation and Benefits consultant with
McDaniel & Associates, Inc. from November 1993 until his appointment to his
current position.
(18) Prior to joining the Company in February 1999, Ms. Witter served as Vice
President, General Counsel and Secretary of Angelica Corporation from May
1985 to January 1999.
</FN>
</TABLE>
10
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The Company's common stock is traded on the NASDAQ National Market
under the symbol "RAYS." The following table sets forth, for the periods
indicated, the high and low sale prices of shares of the common stock as
reported on the NASDAQ National Market.
Fiscal 1999: HIGH LOW
---------- ---------
First Fiscal Quarter (January 31 to May 1) $ 12 5/8 $ 9 7/32
Second Fiscal Quarter (May 2 to July 31) 17 3/16 13
Third Fiscal Quarter (August 1 to October 30) 13 9 9/16
Fourth Fiscal Quarter (October 31 to January 29) 14 8 3/16
Fiscal 1998: HIGH LOW
---------- ---------
First Fiscal Quarter (February 1 to May 2) $ 10 9/16 $ 6 15/16
Second Fiscal Quarter (May 3 to August 1) 12 3/4 8
Third Fiscal Quarter (August 2 to October 31) 8 3/4 3 3/4
Fourth Fiscal Quarter (November 1 to January 30) 10 1/8 4 13/32
On April 14, 2000 the last reported sale price for the Company's common
stock on the NASDAQ National Market was $7.66 per share. As of April 14, 2000
the Company had 280 stockholders of record (including brokerage firms and other
nominees).
In January 1999, the Company issued $1.2 million of convertible
subordinated notes in connection with an acquisition (the "Notes") with a
conversion feature into Company common stock at $6.00 per share. On January 17,
2000, the Company redeemed all of the Notes and issued 208,057 shares of common
stock upon conversion (see Note 10 of Notes to Consolidated Financial
Statements).
The Company intends to retain its earnings to finance the growth and
development of its business and does not anticipate paying cash dividends on its
capital stock in the foreseeable future. Future dividends, if any, will depend,
among other things, on the future earnings, capital requirements and financial
condition of the Company, and on such other factors as the Company's Board of
Directors may consider relevant. In addition, the Company's revolving credit
facility prohibits the payment of cash dividends. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources."
11
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below should be read in
conjunction with the consolidated financial statements and related notes,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the other financial information included elsewhere in this Form
10-K. The data as of January 29, 2000 and January 30, 1999 and for each of
fiscal 1999, 1998 and 1997 are derived from the Company's audited consolidated
financial statements included elsewhere in this Form 10-K. The data as of
January 31, 1998, February 1, 1997 and February 3, 1996 and for the fiscal 1996
and 1995 periods are derived from audited financial statements not included in
this Form 10-K.
<TABLE>
<CAPTION>
FISCAL (1)
(IN THOUSANDS, EXCEPT PER SHARE AND OPERATING DATA)
-----------------------------------------------------------------
1999 1998 1997 1996 1995
----------- ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales $ 635,603 $ 601,954 $ 573,840 $522,297 $418,050
Cost of goods sold, occupancy and buying expenses 368,860 356,523 366,774 312,694 235,163
----------- ----------- ------------ ------------ ----------
Gross profit 266,743 245,431 207,066 209,603 182,887
----------- ----------- ------------ ------------ ----------
Selling, general and administrative expenses:
Operating expenses 186,609 179,633 186,954 150,148 113,973
Depreciation and leasehold amortization 25,698 23,652 28,327 23,291 16,598
Amortization of cost in excess of net assets of acquired 2,017 1,752 2,407 2,323 1,746
businesses
Restructuring expenses (reversals) and asset impairment
charges (399) (371) 54,660 17,528 --
Expenses related to acquisitions - -- -- -- 10,100
----------- ----------- ------------ ------------ ----------
213,925 204,666 272,348 193,290 142,417
----------- ----------- ------------ ------------ ----------
Earnings (loss) from continuing operations before
interest, income taxes, and cumulative effect of
change in accounting principle 52,818 40,765 (65,282) 16,313 40,470
Interest expense 8,122 7,319 8,364 7,969 3,292
----------- ----------- ------------ ------------ ----------
Earnings (loss) from continuing operations before income
taxes, and cumulative effect of change in accounting
principle 44,696 33,446 (73,646) 8,344 37,178
Provision (benefit) for income taxes 17,208 13,625 (15,312) 7,350 15,523
----------- ----------- ------------ ------------ ----------
Earnings (loss) from continuing operations before
cumulative effect of change in accounting principle 27,488 19,821 (58,334) 994 21,655
Discontinued operations:
Loss from discontinued operations net of tax benefits of
$1,400 in 1997, $824 in 1996 and $11 in 1995(2) - - (1,813) (1,219) (18)
Estimated loss from disposal of discontinued operations, net
of income tax benefit of $462 in 1999 and $5,200 in 1997 (2) (738) - (8,089) - -
----------- ----------- ------------ ------------ ----------
Earnings (loss) before cumulative effect of change in
accounting principle 26,750 19,821 (68,236) (225) 21,637
Cumulative effect of change in accounting principle, net of
income tax benefit of $851(3) - - (1,449) - -
----------- ----------- ------------ ------------ ----------
Net income (loss) 26,750 19,821 (69,685) (225) 21,637
Pro forma adjustment for income taxes(4) - - - - (775)
----------- ----------- ------------ ------------ ----------
Pro forma net income (loss) $ 26,750 $ 19,821 $ (69,685) $ (225) $ 20,862
=========== =========== ============ ============ ==========
Pro forma net income (loss) per share
Basic--
From continuing operations $ 0.60 $ 0.38 $ (1.07) $ 0.02 $ 0.41
From discontinued operations (0.02) - (0.18) (0.02) -
Cumulative effect of change in accounting principle - - (0.02) - -
Proforma adjustment for income taxes - - - - (0.01)
----------- ----------- ------------ ------------ ----------
Net income (loss) $ 0.58 $ 0.38 $ (1.27) $ 0.00 $ 0.40
=========== =========== ============ ============ ==========
Diluted--
From continuing operations $ 0.58 $ 0.38 $ (1.07) $ 0.02 $ 0.39
From discontinued operations (0.01) - (0.18) (0.02) -
Cumulative effect of change in accounting principle - - (0.02) - -
Proforma adjustment for income taxes - - - - (0.01)
----------- ----------- ------------ ------------ ----------
Net income (loss) $ 0.57 $ 0.38 $ (1.27) $ 0.00 $ 0.38
=========== =========== ============ ============ ==========
Weighted average shares outstanding:
Basic 45,838 51,524 54,670 54,213 52,796
=========== =========== ============ ============ ==========
Diluted 47,218 52,226 54,670 55,088 54,188
=========== =========== ============ ============ ==========
</TABLE>
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
----------- ----------- ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
SELECTED OPERATING DATA:
Number of stores open at end of period (continuing operations) 1,892 2,005 2,166 2,087 1,724
Comparable store net sales increase 6.8% 3.0% 0.0% 2.5% 10.3%
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
AS OF
------------------------------------------------------------------------------------
JANUARY 29, JANUARY 30, JANUARY 31, FEBRUARY 1, FEBRUARY 3,
2000 1999 1998 1997 1996
-------------- -------------- ------------- -------------- -------------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital $ 59,343 $ 57,367 $ 62,276 $ 140,148 $ 89,153
Total assets 283,503 258,354 299,153 362,513 266,197
Long-term debt 166,196 133,121 125,378 163,279 69,561
Stockholders' equity 44,147 55,189 86,732 157,792 152,824
<FN>
- --------------------------
(1) In June 1995, the Company acquired Sunsations through the exchange of
7,411,764 shares of the Company's common stock for all of the outstanding
common stock of Sunsations. The acquisition was accounted for as a pooling
of interests, and, accordingly, the accompanying selected financial data
has been retroactively adjusted to include the operations of Sunsations for
all periods prior to the acquisition. Prior to the acquisition, Sunsations
used a calendar yearend. Accordingly, the selected financial data for
fiscal 1995 combine Sunsations' historical selected financial data on a
calendar yearend basis with the Company's historical selected financial
data on a fiscal yearend basis. As a result of the acquisition, effective
January 29, 1995 (the first day of the Company's fiscal 1995 year),
Sunsations' yearend was changed to conform to the Company's fiscal yearend.
(2) The Company adopted a plan to discontinue its EyeX segment in January 1998
(see Note 4 of Notes to Consolidated Financial Statements for additional
details).
(3) The Company adopted Emerging Issues Task Force Issue No. 97-13, "Accounting
for Costs Incurred in Connection with a Consulting Contract that Combines
Business Process Reengineering and Information Technology Transformation"
in the fourth quarter of fiscal 1997 (see Note 3 of Notes to Consolidated
Financial Statements for additional details).
(4) The pro forma adjustment for income taxes reflects the additional tax
provision that would have been recorded at the corporation level had
Sunsations not been an S corporation during fiscal 1995.
</FN>
</TABLE>
13
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain
selected income statement data expressed as a percentage of net sales:
<TABLE>
<CAPTION>
FISCAL
------------------------------------------
1999 1998 1997
----------- ----------- ----------
<S> <C> <C> <C>
Net sales 100.0% 100.0% 100.0%
Cost of goods sold, occupancy and buying expenses 58.0 59.2 63.9
----------- ----------- ----------
Gross profit 42.0 40.8 36.1
----------- ----------- ----------
Selling, general and administrative expenses:
Operating expenses 29.4 29.8 32.6
Depreciation and leasehold amortization 4.0 3.9 4.9
Amortization of cost in excess of net assets of acquired businesses 0.3 0.3 0.4
Restructuring expenses (reversals) and asset impairment charges (0.1) (0.1) 9.5
----------- ----------- ----------
33.7 34.0 47.4
----------- ----------- ----------
Earnings (loss) from continuing operations before interest, income
taxes and cumulative effect of change in accounting principle 8.3 6.8 (11.3)
Interest expense 1.3 1.2 1.5
----------- ----------- ----------
Earnings (loss) from continuing operations before income taxes
and cumulative effect of change in accounting principle 7.0 5.6 (12.8)
Provision (benefit) for income taxes 2.7 2.3 (2.7)
----------- ----------- ----------
Earnings (loss) from continuing operations before cumulative
effect of change in accounting principle 4.3 3.3 (10.1)
Discontinued operations:
Loss from discontinued operations, net of income tax benefits - - (0.3)
Estimated loss from disposal of discontinued operations, net of
income tax benefit (0.1) - (1.4)
Cumulative effect of change in accounting principle, net of
income tax benefit - - (0.3)
----------- ----------- ----------
Net income (loss) 4.2% 3.3% (12.1%)
=========== =========== ==========
</TABLE>
OVERVIEW
During fiscal years 1997 and 1998, the Company adopted formal
restructuring plans for the closure of store locations, and as of fiscal year
end 1999, store closures for these restructuring plans have been substantially
completed.
During fiscal 1997, the Company's North America operations were
negatively affected by a slowdown in comparable store sales, and certain
international and licensed department operations performed below expectations.
In response to these performance issues, management performed an assessment of
the Company's asset base, and determined (1) that approximately 250 marginal or
unprofitable locations should be closed, (2) asset impairments should be
recognized with respect to certain international and licensed department
locations, certain store locations and other fixed assets, (3) merchandise
assortments should be focused and the Company's vendor base should be reduced,
and (4) the Company's EyeX segment should be discontinued.
The evaluation of the Company's asset base, the related decision to
reduce vendor and total unit presentation, the adoption of two new accounting
principles and other responses to the current sunglass specialty environment
resulted in $102.6 million of costs ($75.8 million net of tax), or $1.39 per
share, during the fourth quarter of fiscal 1997 as follows: (1) $31.1 million of
long-lived and intangible asset impairments recognized in the Company's
international operations, licensed department operations, selected store
locations (which will continue to be operated), as well as certain other fixed
assets, (2) $23.5 million of costs (write-off of fixed assets, lease exit and
other incremental exit costs) related to the elimination of approximately 250
marginal or unprofitable sites through closure (which was substantially
completed during fiscal 1999) (3) $13.3 million of costs associated with the
discontinuation and disposal of the Company's EyeX optical segment, (4) $13.0
million of inventory disposition costs in connection with the Company's decision
to improve merchandise clarity and focus through the reduction of its vendor and
total unit presentation (which reduction was completed in fiscal 1998 through
bulk sales of this product), (5) $4.6 million of costs related to the impact of
the adoption of new accounting principles during fiscal 1997 related to internal
use software, including the cumulative effect of a change in accounting
principle related to costs incurred in connection with the Company's information
technology transformation projects,
14
<PAGE>
and (6) $17.1 million of other unusual costs and expenses attributable to, among
other things, efforts to restructure the Company's organizational infrastructure
(including litigation reserves, management retention and severance costs
associated with the reorganization of international operations and other items),
which costs have been substantially utilized as of fiscal yearend 1999.
The fiscal 1997 charges discussed previously are reflected in the
accompanying consolidated statements of operations as follows:
<TABLE>
<CAPTION>
FISCAL 1997
-----------------
(IN THOUSANDS)
<S> <C>
Inventory disposition costs (reflected in cost of goods sold, occupancy
and buying expenses) $ 13,015
-----------------
Costs attributable to restructuring of organizational infrastructure:
Reflected in cost of goods sold, occupancy and buying expenses 2,620
Reflected in operating expenses 13,236
Reflected in depreciation and leasehold amortization 1,220
-----------------
17,076
-----------------
Restructuring expenses and asset impairment charges:
Impairment of long-lived and intangible assets 31,125
Restructuring costs 23,535
-----------------
54,660
-----------------
Discontinuation of EyeX segment ($8,089 net of tax) 13,260
-----------------
Costs related to the impact of adoption of new accounting principles:
Costs attributable to adoption of new accounting principle for
internal use software (reflected in operating expenses) 2,314
Cumulative effect of change in accounting principle for costs
incurred in information technology transformation projects
($1,449 net of tax) 2,300
-----------------
4,614
-----------------
Total charges $ 102,625
=================
</TABLE>
During fiscal 1998, the Company recorded a net reversal of
restructuring expenses of $371,000. This amount reflected (a) reversal of $5.1
million of restructuring store closing costs recorded in fiscal 1997, primarily
as a result of favorable experience in store closing costs, and (b) $4.7 million
of costs related to the adoption of a plan in fiscal 1998 for the closure of
approximately 175 additional locations ("175 store plan"). During fiscal 1998,
the Company's operations continued to be negatively affected by the performance
of certain licensed department operations and selected other domestic and
international locations. In response to these performance issues, management
adopted a formal plan for the closure of approximately 175 additional locations.
Costs associated with this plan consisted of $3.2 million of fixed asset
write-offs and $1.5 million of lease exit and other incremental exit costs. The
net cash impact of this plan in fiscal 1999 was minimal, as cash restructuring
costs were offset by inventory reduction and operating loss reduction associated
with the store closings.
During fiscal 1999, as the Company substantially completed its
restructuring plans, it was determined that a net reversal of previously accrued
expenses of $399,000 was required. Accrued restructuring expenses of $1.2
million as of fiscal yearend 1999 are primarily comprised of liabilities for
remaining lease exit costs related to stores closed during the completion of the
restructuring plans.
See Note 2 of Notes to Consolidated Financial Statements for further
information regarding the Company's restructuring plans and Note 4 for further
information regarding discontinued operations.
15
<PAGE>
FISCAL 1999 COMPARED TO FISCAL 1998
Net sales increased $33.6 million, or 5.6%, to $635.6 million in fiscal
1999 compared to $602.0 million in fiscal 1998. This increase reflects sales
from new stores opened in fiscal 1999 (and fiscal 1998 to the extent not
reflected in comparable store sales) of $26.1 million, an increase in comparable
store sales of 6.8% (accounting for $38.1 million of the increase), partially
offset by a decrease of $30.6 million for sales lost due to store closures
during fiscal 1998 and 1999.
Gross profit increased $21.3 million, or 8.7%, to $266.7 million in
fiscal 1999 compared to $245.4 million in fiscal 1998, primarily due to the
increase in net sales. As a percentage of net sales, gross profit increased 1.2
percentage points to 42.0% in fiscal 1999 from 40.8% in fiscal 1998, primarily
due to lower occupancy expense resulting from the closure of underperforming
locations as well as higher merchandise gross margins. The Company anticipates
that gross profit, as a percentage of sales will improve slightly in fiscal 2000
primarily due to lower occupancy expense resulting from the closure of
underperforming locations in fiscal 1999. In addition, although the Company
anticipates gross merchandise margins will decline slightly as watch sales
become a higher percentage of net sales (which sales typically have lower
margins than sunglasses) and changes in vendor terms, management expects that
these declines will be largely offset by improved margins due to the Company's
expansion of exclusive brands and other exclusive product offerings.
Operating expenses increased $7.0 million, or 3.9% to $186.6 million in
fiscal 1999 compared to $179.6 million in fiscal 1998. As a percentage of net
sales, operating expenses decreased 0.4 percentage points to 29.4% in fiscal
1999 compared to 29.8% for the same period in 1998, due to the leverage impact
of comparable store sales and the closure of underperforming locations in fiscal
1998 and 1999.
Depreciation and leasehold amortization expense increased $2.0 million,
or 8.7% to $25.7 million in fiscal 1999 compared to $23.7 million in fiscal
1998, due to new store growth, the renovation of existing stores and
expenditures for required systems enhancements.
Amortization of cost in excess of net assets of acquired business
increased $265,000, or 15.1%, to $2.0 million in fiscal 1999 compared to $1.8
million in fiscal 1998 due to the amortization of goodwill related to the
acquisition of shades.com and SwissArmyDepot.com at the end of fiscal 1998.
Interest expense increased $803,000 to $8.1 million in fiscal 1999,
compared to $7.3 million for the same period last year due to an increase in
average outstanding borrowings during the period. The increase in average
outstanding borrowings was substantially related to the Company's repurchase of
shares during the year.
The Company's effective tax rate for fiscal 1999 and 1998 was 38.5% and
40.7%, respectively. The variation in the effective rate for the tax provision
between 1999 and 1998 is primarily due to the utilization of foreign net
operating loss carryforwards.
As a result of the foregoing, the Company had net income from
continuing operations of $0.58 per diluted share, or $27.5 million, in fiscal
1999 compared to net income from continuing operations of $0.38 per diluted
share, or $19.8 million in fiscal 1998.
The estimated loss from disposal of discontinued operations in fiscal
1999 of $738,000, net of taxes, represents additional provision for liabilities
related to the disposal of EyeX, the Company's optical segment which was
discontinued in January 1998.
The Company reported net income of $0.57 per diluted share, or $26.8
million in 1999 compared to net income of $0.38 per diluted share, or $19.8
million in fiscal 1998
FISCAL 1998 COMPARED TO FISCAL 1997
Net sales increased $28.2 million, or 4.9%, to $602.0 million in fiscal
1998 from $573.8 million in fiscal 1997. The increase reflects sales from new
stores opened during fiscal 1998 (and fiscal 1997 to the extent not reflected in
comparable store sales) of $31.6 million, an increase in comparable store sales
of 3.0% (accounting for $14.5 million of the increase), partially offset by a
decrease of $17.9 million for sales lost due to store closures during fiscal
1997 and 1998.
Gross profit increased $38.3 million, or 18.5%, to $245.4 million in
fiscal 1998 from $207.1 million in fiscal 1997 as a result of increased net
sales and an increased gross profit percentage. As a percentage of net sales,
gross profit increased 4.7 percentage points to 40.8% in fiscal 1998 from 36.1%
in fiscal 1997 due to (1) non-recurrence of $15.6 million of charges recorded in
fiscal 1997, primarily for vendor and unit discontinuation costs, (2) improved
gross merchandise margins as a result of reduced inventory
16
<PAGE>
reduction activity and improved vendor terms, and (3) occupancy expense leverage
due to a comparable store increase of 3.0% and the closure of marginal store
locations.
Operating expenses decreased $7.4 million, or 4.0%, to $179.6 million
in fiscal 1998 from $187.0 million in fiscal 1997. The decrease was due to the
non-recurrence of $15.6 million in charges related to the restructuring of the
Company's organizational infrastructure included in fiscal 1997 operating
expenses. This decrease was partially offset by increased costs associated with
the operations and management of new stores opened in fiscal 1998 and 1997. As a
percentage of net sales, operating expenses decreased 2.8 percentage points to
29.8% in fiscal 1998 from 32.6% in fiscal 1997.
Depreciation and leasehold amortization expense decreased $4.7 million,
or 16.5%, in fiscal 1998 reflecting the positive impact of the Company's lower
asset base due to asset impairment charges recognized in fiscal 1997 and store
closures under the restructuring plans during fiscal 1998 and 1997.
Amortization of cost in excess of net assets of acquired businesses
decreased $655,000, or 27.2%, in fiscal 1998 reflecting the impact of the
Company's lower asset base due to asset impairment charges recognized in fiscal
1997.
Interest expense decreased $1.1 million, or 12.5%, in fiscal 1998 due
to a decrease in average outstanding borrowings during the period, which was
attributable to increased cash provided by operating activities.
The Company's effective tax rate for fiscal 1998 and 1997 was 40.7% and
20.8%, respectively. The variation in the effective rate rate for the tax
provision in 1998 and the tax benefit in 1997 is primarily due to the recording
of a valuation allowance for certain international deferred tax assets.
As a result of the foregoing, the Company had net income of $0.38 per
diluted share or $19.8 million in fiscal 1998 compared to a net loss from
continuing operations of $1.07 per diluted share or $58.3 million in fiscal 1997
(net loss of $1.27 per diluted share or $69.7 million including discontinued
operations).
LIQUIDITY AND CAPITAL RESOURCES
The Company's short-term cash needs are primarily for (i) working
capital to support its inventory requirements (ii) capital expenditure
requirements for new store additions/conversions, e-commerce and other systems
requirements and (iii) common stock repurchases, as authorized by the Company's
Board of Directors. The Company's long-term liquidity requirements relate
principally to the maturity of its revolving credit facility in November 2001,
the maturity of its $115 million convertible subordinated Notes in June 2003,
operating lease commitments and continued store expansion/conversion. The
Company has a revolving credit facility with BankBoston Retail Finance, Inc.
("BankBoston"). The revolving credit facility includes a borrowing availability
of up to $65 million depending on inventory levels, and a supplemental borrowing
component, amounts of which vary depending on the period the borrowings are
outstanding. As of March 25, 2000, the Company's borrowing base was
approximately $57.9 million and the Company was entitled to borrow up to an
additional $11.3 million under the supplemental component of its facility. The
credit facility includes up to $10.0 million in letters of credit. Borrowings
under the credit facility generally bear interest at a floating rate equal to,
at the Company's option, (a) the prime rate or (b) LIBOR plus 2.0%. The facility
is secured with a first priority lien and security interest in substantially all
assets. Borrowings under the BankBoston facility can be used for working capital
and other general corporate purposes, including stock repurchases (which
purchases are subject to a minimum remaining borrowing availability of $12.5
million).
On March 30, 2000, the Company received a commitment from Fleet
National Bank ("Fleet Bank") to provide a three year senior secured revolving
credit facility that provides for borrowings of up to $150 million. Proceeds
from this facility will be used to refinance the existing BankBoston facility,
as well as to support working capital needs for current and new stores and for
common stock repurchases, as authorized by the Company's Board of Directors.
Borrowings under the proposed Fleet Bank facility are expected to bear interest
at a floating rate ranging from (a) prime plus 0 - 1.0% or (b) LIBOR plus 2.0 -
3.0%, depending on a ratio of debt to EBITDA. The Company expects to finalize
this credit facility during the second quarter of fiscal 2000. As the proceeds
of the Fleet Bank facility will be used to refinance the existing BankBoston
facility, the Company expects to write-off approximately $600,000 of unamortized
debt issue costs related to the existing BankBoston facility when the Fleet Bank
facility is finalized.
Due to the seasonal nature of the Company's business, outstanding
borrowings typically peak during the first and third fiscal quarters as the
Company finances inventory purchases in advance of the Company's highest sales
periods. See "Seasonality and Quarterly Results." At January 29, 2000, the
Company had outstanding borrowings under its credit facility of $52.7 million
and $1.0 million in letters of credit outstanding, which were maintained as
security for performance under the Company's executive office lease and for
purchases of certain merchandise.
17
<PAGE>
Net cash provided by operating activities was $50.6 million during
fiscal 1999 compared to $79.0 million in fiscal 1998. The difference between the
Company's net income and operating cash flow in fiscal 1999 was primarily
attributable to depreciation and amortization of $27.7 million, an increase in
accounts payable of $8.9 million, partially offset by an increase of $10.4
million in inventory and a decrease of $4.6 million in accrued expenses.
Net cash used in investing activities was $38.8 million during fiscal
1999 compared to $31.3 million during fiscal 1998. Investing cash flows reflect
capital expenditures related to new store expansion, the renovation of existing
stores and required systems enhancements.
Net cash used in financing activities was $7.4 million for fiscal 1999
compared to $44.9 million for fiscal 1998. Financing cash flows for 1999 reflect
a 34.1 million net increase in the amounts outstanding under the Company's
revolving credit facility as well as approximately $3.5 million of proceeds
received from stock option exercises, partially offset by $44.9 million of stock
repurchase payments.
At January 29, 2000, the Company's commitments for capital expenditures
totaled $1.7 million and are related primarily to capital costs for new store
construction and existing store renovations. In addition, the Company's share
repurchase program currently authorizes the future repurchase of 8.0 million
shares of common stock. Management believes that net cash provided by
operations, together with borrowing availability under the Company's proposed
Fleet Bank credit facility, will be sufficient to fund estimated capital
expenditures associated with the Company's planned opening of approximately 80
store locations and conversion of approximately 200 locations to Combo stores in
fiscal 2000, amounts associated with the Company's common stock repurchase
program and other working capital requirements through at least fiscal 2000.
SEASONALITY AND QUARTERLY RESULTS
Historically, the Company's operations have been seasonal, with highest
net sales and net income occurring in the second fiscal quarter (reflecting
increased demand for sunglasses during the spring and summer months).
The Company's results of operations may also fluctuate from quarter to
quarter as a result of the amount and timing of sales contributed by new stores,
the integration of new stores into the operations of the Company and the timing
of Combo conversions and store closures, as well as other factors. The addition
of a large number of new stores can affect results of operations on a
quarter-to-quarter basis. See Note 15 of Notes to Consolidated Financial
Statements for additional information regarding quarterly financial data.
YEAR 2000 COMPLIANCE
The Company successfully transitioned into the Year 2000 (Y2K) without
any major disruption of systems or business operations. No significant Y2K
issues were experienced relative to the Company's merchandise and other third
party vendors. Accordingly, it was not necessary to invoke any of the company's
contingency plans, which were developed for use in the event of supplier
delivery delay or failure, or critical system or support equipment interruption
or failure.
During fiscal years 1998 and 1999, the Company expensed $905,000 on Y2K
efforts of which approximately $370,000 was expensed in fiscal 1999. The cost of
the project approximated estimates previously reported. These amounts were
funded through operating cash flows. Operating costs related to Y2K compliance
projects were incurred over several quarters and expensed as incurred. Costs
associated with business system solutions for improved business processes are
not included in these amounts. These amounts did not have a material adverse
effect on the Company's financial condition or operating results. The Y2K issue
does not present a materially adverse risk to the Company's future consolidated
results of operations, liquidity, or capital resources.
EUROPEAN MONETARY UNION
On January 1, 1999 eleven of the existing members of the European Union
(the "EU") joined the European Monetary Union (the "EMU"). This will lead to,
among many other things, fundamental changes in the way participating EU states
implement their monetary policies and manage local currency exchange rates.
Ultimately, there will be a single currency within certain countries of the EU,
known as the Euro and one organization, the European Central Bank, responsible
for setting European monetary policy. While some believe that the change will
bring a higher level of competition within Europe and a greater sense of
economic stability within that region, there is no certainty that the Company's
activity in this region will necessarily realize any benefits as a result of
such changes. The Company has reviewed the impact the Euro will have on its
business and whether this will give rise to a need for significant changes in
its commercial operations or treasury management functions. While it is
uncertain whether there will be any
18
<PAGE>
immediate direct benefits from the planned conversion, the Company believes it
is properly prepared to accommodate any changes deemed necessary without any
significant changes to its current commercial operations, treasury management
and management information systems.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
On a limited basis, the Company selectively uses foreign currency swap
agreements to hedge the effect of changes in currency exchange rates on certain
short-term intercompany transactions. No derivative contracts are entered into
for trading or speculative purposes. The use of derivatives did not have a
material impact on the Company's financial position, results of operations or
cash flows in fiscal 1999, 1998 or 1997. See Note 1 of Notes to Consolidated
Financial Statements for further information.
19
<PAGE>
ITEM 8. FINANCIAL STATEMENTS PAGE
----
Report of Independent Certified Public Accountants...................... 21
Consolidated Balance Sheets ............................................ 22
Consolidated Statements of Operations .................................. 23
Consolidated Statements of Stockholders' Equity and Comprehensive
Income (Loss)........................................................ 24
Consolidated Statements of Cash Flows .................................. 25
Notes to Consolidated Financial Statements ............................. 27
20
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Stockholders
of Sunglass Hut International, Inc.:
We have audited the accompanying consolidated balance sheets of
Sunglass Hut International, Inc. (a Florida corporation) and subsidiaries as of
January 29, 2000 and January 30, 1999, and the related consolidated statements
of operations, stockholders' equity and comprehensive income (loss) and cash
flows for each of the three fiscal years in the period ended January 29, 2000.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. 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 financial statements referred to above present
fairly, in all material respects, the financial position of Sunglass Hut
International, Inc. and subsidiaries as of January 29, 2000 and January 30,
1999, and the results of their operations and their cash flows for each of the
three fiscal years in the period ended January 29, 2000 in conformity with
generally accepted accounting principles in the United States.
As discussed in Note 3 to the consolidated financial statements, the
Company adopted the provisions of Emerging Issues Task Force Issue No. 97-13 and
American Institute of Certified Public Accountants Statement of Position No.
98-1 in the fourth quarter of fiscal 1997.
ARTHUR ANDERSEN LLP
Miami, Florida,
March 22, 2000.
21
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL
----------------------------------
1999 1998
--------------- --------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 9,732 $ 5,007
Accounts receivable 4,696 3,547
Inventory 99,212 88,834
Prepaid rent 7,366 7,978
Other current assets 11,497 22,045
--------------- --------------
Total current assets 132,503 127,411
--------------- --------------
PROPERTY AND EQUIPMENT, net 108,187 90,987
COST IN EXCESS OF NET ASSETS OF
ACQUIRED BUSINESSES, net 24,842 26,486
OTHER ASSETS 17,971 13,470
--------------- --------------
Total assets $ 283,503 $ 258,354
=============== ==============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 33,981 $ 25,113
Accrued expenses 37,998 41,327
Accrued restructuring expenses 1,181 3,604
--------------- --------------
Total current liabilities 73,160 70,044
LONG-TERM DEBT, net of current portion 166,196 133,121
--------------- --------------
Total liabilities 239,356 203,165
--------------- --------------
COMMITMENTS AND CONTINGENCIES (Note 11)
STOCKHOLDERS' EQUITY:
Preferred stock -- --
Common stock 427 464
Additional paid-in capital 78,179 116,420
Accumulated deficit (29,965) (56,715)
Accumulated other comprehensive loss (4,494) (4,980)
--------------- --------------
Total stockholders' equity 44,147 55,189
--------------- --------------
Total liabilities and stockholders' equity $ 283,503 $ 258,354
=============== ==============
</TABLE>
The accompanying notes to consolidated financial statements are an integral
part of these balance sheets.
22
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL
-----------------------------------------------
1999 1998 1997
------------ ------------ -------------
<S> <C> <C> <C>
Net sales $ 635,603 $ 601,954 $ 573,840
Cost of goods sold, occupancy and buying expenses 368,860 356,523 366,774
------------ ------------ -------------
Gross profit 266,743 245,431 207,066
------------ ------------ -------------
Selling, general and administrative expenses:
Operating expenses 186,609 179,633 186,954
Depreciation and leasehold amortization 25,698 23,652 28,327
Amortization of cost in excess of net assets of acquired businesses 2,017 1,752 2,407
Restructuring expenses (reversals) and asset impairment charges (399) (371) 54,660
------------ ------------ -------------
213,925 204,666 272,348
------------ ------------ -------------
Earnings (loss) from continuing operations before interest, income
taxes and cumulative effect of change in accounting principle 52,818 40,765 (65,282)
Interest expense 8,122 7,319 8,364
------------ ------------ -------------
Earnings (loss) from continuing operations before income taxes
and cumulative effect of change in accounting principle 44,696 33,446 (73,646)
Provision (benefit) for income taxes 17,208 13,625 (15,312)
------------ ------------ -------------
Earnings (loss) from continuing operations before cumulative
effect of change in accounting principle 27,488 19,821 (58,334)
------------ ------------ -------------
Discontinued operations:
Loss from discontinued operations, net of income tax benefits of
$1,400 in 1997 -- -- (1,813)
Estimated loss from disposal of discontinued operations, net of
income tax benefit of $462 in 1999 and $5,200 in 1997 (738) -- (8,089)
------------ ------------ -------------
(738) -- (9,902)
------------ ------------ -------------
Earnings (loss) before cumulative effect of change in accounting
principle 26,750 19,821 (68,236)
Cumulative effect of change in accounting principle, net of income tax
benefit of $851 in 1997 -- -- (1,449)
------------ ------------ -------------
Net income (loss) $ 26,750 $ 19,821 $ (69,685)
============ ============ =============
Net income (loss) per share:
Basic--
From continuing operations $ 0.60 $ 0.38 $ (1.07)
From discontinued operations (0.02) -- (0.18)
Cumulative effect of change in accounting principle -- -- (0.02)
------------ ------------ -------------
Net income (loss) $ 0.58 $ 0.38 $ (1.27)
============ ============ =============
Diluted--
From continuing operations $ 0.58 $ 0.38 $ (1.07)
From discontinued operations (0.01) -- (0.18)
Cumulative effect of change in accounting principle -- -- (0.02)
------------ ------------ -------------
Net income (loss) $ 0.57 $ 0.38 $ (1.27)
============ ============ =============
Weighted average shares outstanding:
Basic 45,838 51,524 54,670
============ ============ =============
Diluted 47,218 52,226 54,670
============ ============ =============
</TABLE>
The accompanying notes to consolidated financial statements are an
integral part of these statements.
23
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME (LOSS)
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK COMPREHENSIVE LOSS
------------------------- ------------------------
ACCUMULATED
ADDITIONAL OTHER COMPREHENSIVE
NUMBER OF PAID-IN ACCUMULATED COMPREHENSIVE INCOME (LOSS)
SHARES AMOUNT CAPITAL DEFICIT LOSS TOTAL FOR THE PERIOD
------------ ---------- ------------ ---------- ------------- ---------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, FISCAL 1996 54,448,546 $ 544 $ 164,326 $ (6,851) $ (227) $157,792 $ --
Stock and restricted stock awards 225,000 2 1,573 -- -- 1,575 --
Exercise of stock options, including
tax benefit 31,100 1 109 -- -- 110 --
Net loss for fiscal 1997 -- -- -- (69,685) -- (69,685) (69,685)
Foreign currency translation
adjustment -- -- -- -- (3,060) (3,060) (3,060)
------------
Total comprehensive loss -- -- -- -- -- -- $ (72,745)
------------ ---------- ------------ ---------- ------------ ---------- ============
BALANCE, FISCAL 1997 54,704,646 547 166,008 (76,536) (3,287) 86,732 $ --
Exercise of stock options, including
tax benefit 77,604 1 544 -- -- 545 --
Stock repurchases and retirements (8,351,800) (84) (50,132) -- -- (50,216) --
Net income for fiscal 1998 -- -- -- 19,821 -- 19,821 19,821
Foreign currency translation
adjustment -- -- -- -- (1,693) (1,693) (1,693)
------------
Total comprehensive income -- -- -- -- -- -- $ 18,128
------------ ---------- ------------ ---------- ------------ ---------- ============
BALANCE, FISCAL 1998 46,430,450 $ 464 $ 116,420 $(56,715) $ (4,980) $ 55,189 $ --
Exercise of stock options, including
tax benefit 653,658 6 5,388 -- -- 5,394 --
Stock repurchases and retirements (4,492,000) (45) (44,875) -- -- (44,920) --
Conversion of convertible subordinated
notes 208,057 2 1,246 -- -- 1,248 --
Net income for fiscal 1999 -- -- -- 26,750 -- 26,750 26,750
Foreign currency translation
adjustment -- -- -- -- 486 486 486
------------
Total comprehensive income -- -- -- -- -- -- $ 27,236
------------ ---------- ------------ ---------- ------------ ---------- ============
BALANCE, FISCAL 1999 42,800,165 $ 427 $ 78,179 $(29,965) $ (4,494) $ 44,147
============ ========== ============ ========== ============ ==========
</TABLE>
The accompanying notes to consolidated financial statements are an
integral part of these statements.
24
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL
-----------------------------------------------
1999 1998 1997
------------ -------------- ------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 26,750 $ 19,821 $ (69,685)
------------ -------------- ------------
Adjustments to reconcile net income (loss) to net cash provided by continuing
operations:
Depreciation and amortization 27,715 25,404 30,734
Provision for discontinued merchandise -- -- 13,015
Restructuring expenses (reversals) and asset impairment charges (399) (371) 54,660
Loss from discontinued operations, net of tax benefits -- -- 1,813
Estimated loss from disposal of discontinued operations, net of
tax benefit 738 -- 8,089
Cumulative effect of change in accounting principle, net of
tax benefit -- -- 1,449
Write-off of deferred software development costs, net of 1,459
tax benefit -- -- --
Stock-based compensation -- -- 1,575
Accretion of debt discount 378 359 340
Changes in operating assets and liabilities, net of effect of acquisitions--
Changes in assets:
Accounts receivable (1,149) 65 (651)
Inventory (10,378) 13,131 28,781
Prepaid rent 612 (271) (295)
Other current assets 1,806 12,950 (14,940)
Other assets 357 853 (1,465)
Deferred income taxes 3,245 10,660 (13,514)
Changes in liabilities:
Accounts payable 8,868 7,034 5,953
Accrued expenses (4,588) (3,572) 28,116
Accrued restructuring expenses (2,509) (4,777) (7,509)
------------ -------------- ------------
24,696 61,465 137,610
------------ -------------- ------------
Net cash provided by continuing operations 51,446 81,286 67,925
Net cash used in discontinued operations (876) (2,254) (1,374)
------------ -------------- ------------
Net cash provided by operating activities 50,570 79,032 66,551
------------ -------------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (38,832) (28,507) (29,059)
Capital expenditures-discontinued operations -- (31) (648)
Acquisitions of businesses -- (2,769) (1,396)
------------ -------------- ------------
Net cash used in investing activities (38,832) (31,307) (31,103)
------------ -------------- ------------
</TABLE>
(CONTINUED ON NEXT PAGE)
25
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS--(CONTINUED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL
-----------------------------------------------
1999 1998 1997
------------ -------------- ------------
<S> <C> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on long-term debt (125) (50) (316)
Proceeds from borrowings under revolving credit facilities 250,069 104,236 104,900
Principal payments on revolving credit facilities (215,997) (98,051) (143,000)
Payments for stock repurchases and retirements (44,920) (50,216) --
Payment of deferred financing costs -- (1,178) (288)
Proceeds from exercise of stock options 3,539 392 49
------------ -------------- ------------
Net cash used in financing activities (7,434) (44,867) (38,655)
------------ -------------- ------------
------------ -------------- ------------
Effect of exchange rate changes on cash and cash equivalents 421 (1,223) 990
------------ -------------- ------------
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS 4,725 1,635 (2,217)
CASH AND CASH EQUIVALENTS, beginning of year 5,007 3,372 5,589
------------ -------------- ------------
CASH AND CASH EQUIVALENTS, end of year $ 9,732 $ 5,007 $ 3,372
============ ============== ============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid (received) during the year for:
Interest $ 7,650 $ 7,021 $ 7,925
============= ============= ============
Income taxes $ 10,856 $ (15,597) $ 3,293
============= ============= ============
Non-cash activities:
Write-off (reversal) of property and equipment against accrued
restructuring expenses $ (693) $ 15,387 $ 25,421
Write-off of other assets against accrued restructuring expenses 208 1,650 11,037
Impact on stockholders' equity from tax benefit related to the
exercise of stock options 1,855 153 61
Issuance of convertible subordinated notes payable in connection
with the acquisition of shades.com and SwissArmy Depot.com -- 1,248 --
Conversion of convertible subordinated notes payable
into common stock 1,248 -- --
------------- ------------- ------------
$ 2,618 $ 18,438 $ 36,519
============= ============= ============
</TABLE>
The accompanying notes to consolidated financial statements are an
integral part of these statements.
26
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1--ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
Sunglass Hut International, Inc., a Florida corporation, and
subsidiaries (collectively, the "Company"), are engaged in retail sunglass and
watch sales. The Company operates stores located throughout the United States,
Canada, the Caribbean, Europe, Australia, New Zealand, and Singapore.
PRINCIPLES OF CONSOLIDATION/FISCAL YEAR
The consolidated financial statements include the accounts of the
Company and its wholly owned subsidiaries. All significant intercompany balances
and transactions have been eliminated in consolidation. EyeX, the Company's
optical segment, has been recorded as a discontinued operation, and,
accordingly, is accounted for using the equity method. The Company's yearend is
the Saturday nearest January 31. Consequently, the Company's fiscal 1999, 1998
and 1997 years encompass the periods of January 31, 1999 through January 29,
2000, February 1, 1998 through January 30, 1999 and February 2, 1997 through
January 31, 1998, respectively.
RECLASSIFICATIONS
Certain amounts in the prior year financial statements have been
reclassified to conform to the current year presentation.
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
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. Significant estimates made by management include but are not
limited to the realizability of the Company's deferred tax assets, the possible
outcome of outstanding litigation, inventory shrinkage and obsolescence
accruals, self-insurance accruals for employee medical benefits, recognition of
supplier incentives and support, and future obligations and costs associated
with the Company's restructuring plans and strategic initiatives. Actual results
in subsequent periods could differ from those estimates.
EARNINGS PER SHARE
Basic earnings per common share calculations are determined by dividing
earnings available to common stockholders by the weighted average number of
shares of common stock. Diluted earnings per share are determined by dividing
earnings available to common shareholders by the weighted average number of
shares of common stock and dilutive common stock equivalents outstanding
(related to outstanding stock options discussed in Note 13 and the convertible
debt discussed in Notes 5 and 10).
27
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 1--ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
Basic and diluted earnings per share for income (loss) from continuing
operations before cumulative effect of accounting change is computed as follows:
<TABLE>
<CAPTION>
FISCAL
------------------------------------------------------
1999 1998 1997
--------------- ---------------- ---------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Numerator:
Earnings (loss) from continuing operations before
cumulative effect of accounting change $ 27,488 $ 19,821 $ (58,334)
Effect of dilutive securities:
Interest expense on convertible debt issued
in January 1999, net of tax benefit 39 -- --
--------------- ---------------- ---------------
Numerator for diluted earnings per share $ 27,527 $ 19,821 $ (58,334)
=============== ================ ===============
Denominator:
Denominator for basic earnings (loss) per share 45,838 51,524 54,670
Effect of dilutive securities:
Options to purchase common stock 1,189 685 --
Convertible debt issued in January 1999 191 17 --
--------------- ---------------- ---------------
Denominator for diluted earnings (loss) per share 47,218 52,226 54,670
=============== ================ ===============
Earnings (loss) per share from continuing operations
before cumulative effect of accounting change:
Basic $ 0.60 $ 0.38 $ (1.07)
=============== ================ ===============
Diluted $ 0.58 $ 0.38 $ (1.07)
=============== ================ ===============
Antidilutive securities not included in the diluted earnings
(loss) per share computation:
Options to purchase common stock 489 438 3,139
Exercise price $ 11.13 $ 7.00 $ 0.25
to to to
$ 30.81 $ 30.81 $ 30.81
Convertible subordinated debt $ 115,000 $ 115,000 $ 115,000
Conversion price $ 30.25 $ 30.25 $ 30.25
</TABLE>
CONCENTRATION OF SUPPLIERS
In fiscal 1999, Luxottica (including Ray-Ban, Revo, Killer Loop,
Arnette, Giorgio Armani and other brands) and Oakley, the Company's largest
suppliers, accounted for approximately 24.6% and 23.9%, respectively, of the
Company's total merchandise purchases. The Company has no long-term purchase
contracts or other contractual assurance of continued supply, pricing or access
to new products. On June 28, 1999, Luxottica Group, SpA completed the purchase
of the assets and liabilities of Bausch & Lomb's eyewear business (which
included Ray-Ban, Revo, Killer Loop, Arnette and other brands). The inability to
obtain merchandise from one or more key vendors on a timely basis, or a material
change in the Company's current purchase terms, could have a material adverse
effect on its results of operations.
INVENTORY
Inventory, which consists of retail merchandise, is stated at the lower
of cost (computed using the average cost method which approximates the first-in,
first-out method) or market. Provision, when necessary, has been made to reduce
inventory to its net realizable value.
28
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 1--ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost less accumulated depreciation
and leasehold amortization. Depreciation and leasehold amortization are
calculated using the straight-line method over the expected useful lives of the
related assets. Useful lives generally range from 5 to 10 years. Upon the sale
or disposition of property and equipment, the asset cost and related accumulated
depreciation and leasehold amortization are removed from the accounts and any
resulting gain or loss is included in income. Maintenance and repairs are
expensed as incurred. The Company capitalizes interest incurred on funds used to
develop software for internal use. Interest capitalized during 1999, 1998 and
1997 was minimal.
COST IN EXCESS OF NET ASSETS OF ACQUIRED BUSINESSES
The unamortized cost in excess of net assets of acquired businesses is
being amortized on a straight-line basis over periods ranging primarily from 15
to 25 years. Accumulated amortization at January 29, 2000 and January 30, 1999
was $30.7 million and $28.9 million, respectively. The Company continually
evaluates whether events and circumstances have occurred subsequent to
acquisitions that indicate the remaining estimated useful life of cost in excess
of net assets of acquired businesses may warrant revision or that the remaining
balance of cost in excess of net assets of acquired businesses may not be
recoverable. When factors indicate that cost in excess of net assets of acquired
businesses should be evaluated for possible impairment, the Company uses an
estimate of the related business' undiscounted projected net operating cash
flows over the remaining life of the cost in excess of net assets of acquired
businesses in measuring whether the remaining unamortized cost and the net book
value of the related fixed and other assets are recoverable. If the cost in
excess of net assets of acquired businesses is determined to be impaired, such
assets are reduced to management's best estimate of fair value using the
discounted projected net operating cash flows over the remaining life.
REVENUE RECOGNITION
Revenues from retail sales are recorded upon customer purchase.
STORE OPENING COSTS
Salaries, training and travel costs relating to opening new retail
locations are expensed as incurred.
CATALOG AND ADVERTISING COSTS
Catalog costs, primarily consisting of catalog production and mailing
costs, are amortized over the expected future revenue stream, which is
principally from three to six months from the date catalogs are mailed. A
significant amount of these costs is funded by vendors and, as such, the expense
incurred by the Company is not material. All other advertising costs are not
material and are expensed as incurred.
INCOME TAXES
Deferred tax assets and liabilities are determined based on differences
between financial reporting and tax bases of assets and liabilities and are
measured using the enacted tax rates and laws that are expected to be in effect
when the differences are expected to reverse. Deferred income tax provisions and
benefits are based on the changes to the asset or liability from period to
period. A valuation allowance is recognized to reduce net deferred tax assets to
amounts that management believes are more likely than not to be realized. The
Company files a consolidated tax return with its domestic subsidiaries in the
United States.
TRANSLATION OF FOREIGN CURRENCIES
Assets and liabilities of foreign subsidiaries are translated at the
rate of exchange in effect at the balance sheet date; income and expenses are
translated at the average rates of exchange prevailing during the year. The
related translation adjustments are reflected in the accumulated other
comprehensive loss section of the consolidated statements of stockholders'
equity and comprehensive loss. Foreign currency gains and losses resulting from
transactions denominated in foreign currencies, including intercompany
transactions, except for intercompany loans of a long-term investment nature,
are included in results of operations.
29
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 1--ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
FORWARD CURRENCY SWAP AGREEMENTS
The Company enters into forward currency swap agreements from time to
time to hedge the effect of changes in currency exchange rates on certain
short-term intercompany transactions. Forward currency swap agreements obligate
the Company to exchange, at future dates, various currencies at agreed upon
exchange rates. Gains and losses on these agreements resulting from changes in
currency exchange rates, if any, are offset against corresponding gains and
losses on the short-term intercompany transactions, if any. Premiums paid or
discounts received on these agreements are amortized over the term of the
agreement. For reporting purposes, the assets and liabilities resulting from
these agreements are offset because there is a legal right of offset. At January
29, 2000, no foreign currency swap agreements were outstanding.
CASH AND CASH EQUIVALENTS/FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company classifies as cash and cash equivalents all
interest-bearing deposits with original maturities of three months or less. The
fair value of a financial instrument represents the amount at which the
instrument could be exchanged in a current transaction between willing parties,
other than in a forced sale or liquidation. Fair value estimates are made at a
specific point in time, based on relevant market information about the financial
instrument. These estimates are subjective in nature and involve uncertainties
and matters of significant judgment, and therefore cannot be determined with
precision. The assumptions used have a significant effect on the estimated
amounts reported.
The carrying amount of cash and cash equivalents, accounts receivable,
accounts payable and borrowings under the revolving credit facility approximate
fair value as of January 29, 2000 and January 30, 1999. The fair value of
convertible subordinated debentures approximates $91.4 million based on the
quoted market price as of January 29, 2000.
NEW ACCOUNTING STANDARDS
Derivative Instruments and Hedging Activities
In June 1998, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 133, "Accounting for
Derivative Instruments and Hedging Activities". As issued, SFAS No. 133 is
effective for all quarters of fiscal years beginning after June 15, 1999.
However, in June 1999, the FASB issued SFAS No. 137, "Accounting for Derivative
Instruments and Hedging Activities - Deferral of the Effective Date of FASB
Statement No. 133," deferring the effective date of SFAS No. 133 to all fiscal
quarters of fiscal years beginning after June 15, 2000. SFAS No. 133 establishes
accounting and reporting standards for derivative instruments, including certain
derivative instruments embedded in other contracts, and for hedging activities.
It requires that entities recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those instruments
at fair value. The Company will adopt SFAS No. 133 when required and is in the
process of reviewing the impact of such adoption on its financial position and
results of operations.
Start-Up Costs
In April 1998, the American Institute of Certified Public Accountants
("AICPA") issued Statement of Position ("SOP") 98-5, "Reporting on the Costs of
Start-Up Activities". SOP 98-5 requires that costs incurred during the
organization, pre-opening and start up phases of a project be expensed as
incurred, unless they are appropriately capitalizable under other existing
accounting pronouncements. The Company adopted the SOP in the first quarter of
fiscal 1999 and the adoption did not have a material effect on its financial
position and results of operations.
30
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 2--RESTRUCTURING EXPENSES AND ASSET IMPAIRMENT CHARGES
During fiscal 1997, management performed an assessment of the
recoverability of the Company's asset base and, as a result, recorded $54.6
million ($34.8 million net of tax benefits) for restructuring expenses and asset
impairment charges (the "250 Store Restructuring"). Pre-tax restructuring
charges of $23.5 million related to the closing of approximately 250 marginal or
unprofitable locations in the Company's North American, European and Australian
segments and consisted of non-cash charges of $12.9 million for fixed and other
asset write-downs and cash charges of $10.6 million for lease exit and other
incremental exit costs. Additionally, asset impairment charges of $31.1 million
($20.1 million net of tax) were determined based on an analysis of projected
estimated cash flows for underperforming operations which will continue to be
operated and consisted of write-downs of fixed and other assets of European
operations of $6.5 million, Australian operations of $10.3 million (including
$7.9 million of cost in excess of net assets of acquired businesses), licensed
departments of $4.0 million, certain underperforming domestic acquisitions of
$2.5 million, and other underperforming assets of $7.8 million. The after-tax
charge also reflects the probability that certain net operating loss
carry-forwards will not provide future tax benefits to the Company.
Additionally, during fiscal 1997, the Company recorded charges of (a)
$13.0 million (reflected in cost of goods sold, occupancy and buying expenses)
for inventory disposition costs in connection with the Company's decision to
improve merchandise clarity and focus through the reduction of its vendor and
total unit presentation and (b) $17.1 million ($13.3 million in operating
expenses, $2.6 million in cost of goods sold, occupancy and buying expenses and
$1.2 million in depreciation and leasehold amortization) of other unusual costs
and expenses attributable to, among other things, efforts to restructure the
Company's organizational infrastructure (including litigation reserves,
management retention and severance costs associated with the reorganization of
international operations and other items). During fiscal 1998, the Company
substantially completed these programs.
During fiscal 1998, the Company assessed the amounts recorded with its
250 Store Restructuring plan and determined that as a result of favorable
experience in store closing costs, a reversal of previously accrued expenses of
$5.1 million was required. Additionally, during fiscal 1998, as management
continued the evaluation of its asset base, a formal plan was adopted for the
closure of approximately 175 additional store locations and restructuring
expenses of $4.7 million were recorded. The charges to be incurred in connection
with the 175-store plan consisted of $3.2 million of non-cash charges for fixed
and other asset write-downs and cash charges of $1.5 million for lease exit and
other incremental costs.
During fiscal 1999, as the Company substantially completed its
restructuring plans, it was determined that a net reversal of previously accrued
expenses of $399,000 was required. Accrued restructuring expenses of $1.2
million as of fiscal yearend 1999 are primarily comprised of liabilities for
remaining lease exit costs related to stores closed during the completion of the
restructuring plans.
Store locations held for disposal under the plans remained in operation
up until the date of closure. For fiscal years 1999, 1998 and 1997, the net
sales for these stores were $9.6 million, $48.2 million and $63.5 million,
respectively. Additionally, results of operations of these stores generated
negative EBITDA (earnings before interest, taxes, depreciation and amortization)
of $1.4 million, $4.1 million, and $5.1 million in fiscal years 1999, 1998 and
1997, respectively. Store assets were written down to fair value at the time the
plans were approved and depreciation expense for these locations was suspended.
The effect of suspending depreciation on assets held for disposal through the
dates of disposition (assuming no writedown in value) was $584,000, $1,594,000
and $751,000 in fiscal years 1999, 1998 and 1997, respectively.
The following summarizes the activity in accrued restructuring expenses
during fiscal years 1999, 1998 and 1997 (amounts are in thousands):
<TABLE>
<CAPTION>
PROVISION FOR CASH PAYMENTS
RESTRUCTURING FOR LEASE EXIT FIXED AND OTHER ASSET REVERSAL OF
BEGINNING EXPENSES/ASSET AND OTHER (WRITEDOWNS) REVERSALS/ RESTRUCTURING ENDING
ACCRUAL IMPAIRMENT INCREMENTAL COSTS IMPAIRMENTS EXPENSES ACCRUAL
-------------- ----------------- --------------------- --------------------------- ---------------- ---------
<S> <C> <C> <C> <C> <C> <C>
Fiscal Year 1999 $ 3,604 $ -- $ (2,509) $ 485 $ (399) $ 1,181
Fiscal Year 1998 25,789 4,727 (4,777) (17,037) (5,098) 3,604
Fiscal Year 1997 15,096 54,660 (7,509) (36,458) -- 25,789
</TABLE>
31
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 3--ADOPTION OF NEW ACCOUNTING PRONOUNCEMENTS REGARDING ACCOUNTING FOR
INTERNAL USE SOFTWARE
During fiscal 1997, as required, the Company adopted Emerging Issues
Task Force ("EITF") Issue No. 97-13, "Accounting for Costs Incurred in
Connection with a Consulting Contract that Combines Business Process
Reengineering and Information Technology Transformation", which requires that
reengineering costs incurred as part of an acquisition, installation or
development of software be separated from other software project costs and
expensed as incurred. In accordance with EITF Issue No. 97-13, the cumulative
effect of the change in accounting principle of $2.3 million ($1.4 million net
of tax) was recognized in the fourth quarter of fiscal 1997 in the accompanying
consolidated statements of operations to reflect reengineering costs previously
capitalized as part of the consulting costs incurred for the Company's human
resources and financial software implementation projects.
As of fiscal yearend 1997, the Company adopted AICPA SOP 98-1,
"Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use". SOP 98-1 requires, in general, that all costs in the preliminary
project stage of a software installation or development project (prior to
software selection) and all costs in the post-implementation stage (once the
software is operational), as well as costs incurred to convert data (other than
coding), should be expensed as incurred. In accordance with this pronouncement,
the provisions of SOP 98-1 were retroactively adopted as of the beginning of
fiscal year 1997, and, as a result, the Company recorded charges of $2.3 million
in operating expenses in the accompanying consolidated statements of operations
for the period.
NOTE 4-- DISCONTINUED OPERATIONS
In January 1998, as part of the Company's evaluation of its asset base,
the Company adopted a plan to discontinue its EyeX segment. The Company
substantially completed the disposition of EyeX during fiscal 1998. Summarized
results of EyeX for fiscal 1997 are as follows:
FISCAL 1997
------------------
(IN THOUSANDS,
EXCEPT PER SHARE
DATA)
Net sales $ 7,819
==================
Loss before tax benefit (3,163)
Income tax benefit 1,350
------------------
Net loss from operations (1,813)
Estimated loss from disposition, net of tax (8,089)
------------------
Net loss from discontinued operations $ (9,902)
==================
Basic and diluted net loss per share $ (0.18)
==================
During fiscal 1999, the Company recorded an additional provision for
liabilities of $1.2 million ($738,000 net of tax) for additional lease exit and
other incremental costs associated with the disposition of this segment. The net
liabilities of discontinued operations at fiscal yearend are summarized as
follows:
FISCAL
----------------------------
1999 1998
------------ ------------
(IN THOUSANDS)
Current assets $ 712 $ 675
Allowance for estimated loss
from disposition (1,295) (1,396)
------------ ------------
Net liabilities $ (583) $ (721)
============ ============
The allowance for estimated loss from disposition represents provision
for lease exit costs and other incremental costs. The net liabilities at January
29, 2000 and January 30, 1999 are included in accrued expenses in the
accompanying consolidated balance sheet.
32
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 4--DISCONTINUED OPERATIONS (CONTINUED)
The Company remains contingently liable under operating leases of
certain store locations that were assigned to third parties as part of the
disposal of EyeX. The present value of these lease obligations (discounted at
8.0%) as of fiscal yearend 1999 is approximately $6.6 million. The possibility
of the Company having to honor its contingent obligations is dependent upon the
future operating results of the parties to which the leases were assigned.
Should a reserve be required, it would be recorded at the time the obligation
was determined to be both probable and estimable.
NOTE 5--ACQUISITIONS
In January 1999, the Company acquired substantially all of the assets
of shades.com and SwissArmyDepot.com, businesses engaged in selling sunglasses,
watches and accessories primarily through Internet websites. The purchase price
paid for the acquisition was $4.1 million consisting of $2.9 million in cash and
$1.2 million in convertible subordinated notes. The acquisition was accounted
for as a purchase, with the excess of purchase price over the fair value of net
assets acquired of approximately $4.1 million being recorded as cost in excess
of net assets of acquired businesses.
NOTE 6--OTHER CURRENT ASSETS
Other current assets consist of the following at fiscal yearend:
FISCAL
-----------------------------------
1999 1998
---------------- --------------
(IN THOUSANDS)
Current deferred tax assets $ 4,099 $ 12,755
Tax refund receivable -- 4,271
Other 7,398 5,019
---------------- --------------
$ 11,497 $ 22,045
================ ==============
NOTE 7--PROPERTY AND EQUIPMENT
Property and equipment consists of the following at fiscal yearend:
FISCAL
-----------------------------
1999 1998
------------- -------------
(IN THOUSANDS)
Leasehold improvements $ 85,065 $ 84,583
Furniture and fixtures 116,660 96,299
Construction in progress 5,665 3,291
------------- -------------
207,390 184,173
Less--Accumulated depreciation and amortization (99,203) (93,186)
------------- -------------
$ 108,187 $ 90,987
============= =============
NOTE 8--ACCRUED EXPENSES
Accrued expenses consist of the following at fiscal yearend:
FISCAL
-----------------------------------
1999 1998
---------------- --------------
(IN THOUSANDS)
Accrued payroll and related taxes $ 10,035 $ 9,015
Accrued rent 8,181 8,450
Other accrued expenses 19,782 23,862
---------------- --------------
$ 37,998 $ 41,327
================ ==============
33
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 9--INCOME TAXES
Income tax expense (benefit) attributable to income (loss) from
continuing operations before cumulative effect of accounting change consists of:
<TABLE>
<CAPTION>
FISCAL
-------------------------------------------------------------
1999 1998 1997
----------------- ----------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C>
Current:
Federal $ 10,331 $ (4,271) $ (10,208)
State 1,821 456 1,701
Foreign 1,528 733 571
----------------- ----------------- ---------------
13,680 (3,082) (7,936)
----------------- ----------------- ---------------
Deferred:
Federal 1,932 13,380 (6,106)
State 95 2,325 (4,316)
Foreign 1,501 1,002 3,046
----------------- ----------------- ---------------
3,528 16,707 (7,376)
----------------- ----------------- ---------------
$ 17,208 $ 13,625 $ (15,312)
================= ================= ===============
</TABLE>
Income tax expense (benefit) attributable to income (loss) from
continuing operations before cumulative effect of accounting change differed
from the amounts computed by applying the U.S. federal income tax rate of 35% to
pretax income (loss) from continuing operations before cumulative effect of
accounting change as a result of the following:
<TABLE>
<CAPTION>
FISCAL
---------------------------------------------------
1999 1998 1997
--------------- -------------- --------------
(IN THOUSANDS)
<S> <C> <C> <C>
Income tax provision (benefit) at the statutory rate $ 15,643 $ 11,706 $ (25,776)
State and local income taxes, net of federal income tax benefit 1,245 1,950 (1,711)
Non-deductible amortization of cost in excess of net assets of
acquired businesses 240 234 237
Foreign net operating loss utilization (779) - -
Valuation allowance and contingencies 429 201 12,180
Other, net 430 (466) (242)
--------------- -------------- --------------
$ 17,208 $ 13,625 $ (15,312)
=============== ============== ==============
</TABLE>
The components of the current and non-current deferred tax assets are
summarized as follows at fiscal yearend:
<TABLE>
<CAPTION>
FISCAL
-----------------------------------
1999 1998
----------------- ----------------
<S> <C> <C>
Current deferred tax assets: (IN THOUSANDS)
Inventory, principally due to additional costs capitalized for tax
purposes $ 928 $ 848
Reserves, principally due to accruals for financial reporting purposes 3,065 11,835
Other 106 72
----------------- ----------------
Current deferred tax assets (included in other current assets) 4,099 12,755
----------------- ----------------
Non-current deferred tax assets:
Property and equipment, principally due to differences in depreciation 7,999 3,231
Accrued rents, principally due to the equalization of expenses for
financial reporting purposes 1,505 1,468
Net operating loss carryforwards 6,019 6,129
Alternative minimum tax credit 854 845
Other 122 104
----------------- ----------------
Non-current deferred tax assets 16,499 11,777
Valuation allowance (3,738) (4,427)
----------------- ----------------
Non-current deferred tax assets (included in other assets) 12,761 7,350
----------------- ----------------
Net deferred tax assets $ 16,860 $ 20,105
================= ================
</TABLE>
34
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 9--INCOME TAXES--(CONTINUED)
A valuation allowance is provided when it is more likely than not that
some portion of the deferred tax asset may not be realized. The net change in
the total valuation allowance for the year ended January 29, 2000 was a decrease
of $689,000.
The Company has not recognized a deferred tax liability for the
undistributed earnings of its wholly owned foreign subsidiaries because the
Company currently does not expect those unremitted earnings to reverse and
become taxable to the Company in the foreseeable future. A current or deferred
tax provision net of foreign tax credits, as applicable, will be recognized when
the Company expects that it will recover those undistributed earnings in a
taxable manner. At January 29, 2000, the undistributed earnings of these
subsidiaries (not including subsidiaries with foreign net operating losses) were
approximately $14.4 million.
NOTE 10--LONG-TERM DEBT
Long-term debt consists of the following at fiscal yearend:
<TABLE>
<CAPTION>
FISCAL
-----------------------------
1999 1998
------------- ------------
(IN THOUSANDS)
<S> <C> <C> <C>
5 1/4% convertible subordinated notes, net of unamortized discount of $1,460,000 and
$1,838,000, respectively, interest payable semi-annually, principal due June 2003. $ 113,540 $ 113,162
Borrowings under the Company's revolving credit facility with BankBoston at the Company's
option of (a) the prime rate (8.5% as of January 29, 2000) or (b) LIBOR (5.8% as of
January 29, 2000) plus 2%, due November 2001. 52,656 18,584
5 1/4% convertible subordinated notes, interest payable semi-annually, principal due
January 2001 -- 1,248
Other -- 127
------------- ------------
166,196 133,121
Less--Current portion of long-term debt -- --
------------- ------------
$ 166,196 $ 133,121
============= ============
</TABLE>
In April 1998, the Company entered into a revolving credit facility
with BankBoston Retail Finance Inc. ("BankBoston") that provides for a
commitment through November 2001. The revolving credit facility includes a
borrowing availability of up to $65 million, depending on inventory levels, and
a supplemental borrowing component, amounts of which vary depending on the
period the borrowings are outstanding. At January 29, 2000, the Company was
entitled to borrow up to $11.3 million under the supplemental component of its
facility. The credit facility includes up to $10.0 million in letters of credit.
At January 29, 2000 the Company had $1.0 million in unsecured letters of credit
outstanding which are being maintained as security for performance under the
Company's executive office lease and for certain purchases of merchandise.
Borrowings under the credit facility generally bear interest at a floating rate
equal to, at the Company's option, (a) the prime rate or (b) LIBOR plus 2.0%.
The facility is secured with a first priority lien and security interest in
substantially all assets. Borrowings under the BankBoston facility can be used
for working capital and other general corporate purposes, including stock
repurchases (which purchases are subject to minimum remaining availability of
$12.5 million). The Company's revolving credit facility prohibits the payment of
cash dividends. The supplemental component of the BankBoston facility has
certain financial covenant requirements that are effective when borrowings occur
against this facility. At January 29, 2000, no borrowings were outstanding on
this supplemental facility.
In June 1996, the Company issued $115 million principal amount of
convertible subordinated notes (the "Notes Due 2003") to certain qualified
institutional investors. The resale of the Notes Due 2003 was later registered
with the Securities and Exchange Commission in October 1996. The notes bear
interest at 5 1/4%, payable semi-annually, and mature June 2003. The Notes are
subordinated to all existing and future indebtedness of the Company, and are
convertible into Company common stock at $30.25 per share.
In January 1999, the Company issued $1.2 million of convertible
subordinated notes (the "Notes Due 2001") in connection with an acquisition (see
Note 5). The notes bear interest at 5 1/4%, payable semi-annually, and mature in
January 2001. The Notes Due 2001 are unsecured and subordinate and junior to the
Notes Due 2003, and are convertible into Company common stock at $6.00 per
share. On January 17, 2000, the Notes Due 2001 were converted into 208,057
shares of the Company's common Stock.
35
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 10--LONG-TERM DEBT--(CONTINUED)
Maturities of long-term debt are as follows at January 29, 2000:
FISCAL YEAR AMOUNT
- ------------------------ ---------------------
(IN THOUSANDS)
2000 -
2001 52,656
2002 -
2003 115,000
---------------------
$ 167,656
=====================
NOTE 11--COMMITMENTS AND CONTINGENCIES
OPERATING LEASES
The Company leases all of its retail stores and its office and
warehouse facilities under operating leases. Store rent expense generally
includes a percentage of the retail store's sales volume and/or a fixed minimum
base rent. In addition, the majority of leases are subject to an annual
adjustment for increases in real estate taxes, maintenance and insurance costs.
The Company was obligated for the following minimum annual base rentals
under operating leases at January 29, 2000:
FISCAL YEAR AMOUNT
--------------------- -------------------
(IN THOUSANDS)
2000 $ 70,953
2001 62,486
2002 55,757
2003 47,360
2004 38,955
Thereafter 90,919
-------------------
$ 366,430
===================
Base rent expense totaled $85.2 million, $83.1 million and $85.4
million for fiscal years 1999, 1998 and 1997, respectively. Percentage of sales
over a fixed minimum base rent totaled $4.5 million, $5.9 million and $6.2
million for fiscal years 1999, 1998 and 1997, respectively.
SELF-INSURED GROUP HEALTH
The Company is self-insured for employee medical benefits under the
Company's group health plan. The Company maintains stop loss coverage for
individual medical claims in excess of $150,000 and for annual Company medical
claims which exceed approximately $4.1 million in the aggregate. While the
ultimate amount of claims incurred is dependent on future developments, in
management's opinion, recorded reserves are adequate to cover the future payment
of claims. However, it is reasonably possible that recorded reserves may not be
adequate to cover the future payment of claims. Adjustments, if any, to
estimates recorded resulting from ultimate claim payments will be reflected in
operations in the periods in which such adjustments are known.
36
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 11--COMMITMENTS AND CONTINGENCIES--(CONTINUED)
CONSTRUCTION COMMITMENTS
In the normal course of business, the Company enters into commitments
for the construction of both new stores and existing store renovations. At
January 29, 2000, the amount outstanding under these construction commitments
totaled approximately $1.7 million.
LITIGATION, CLAIMS AND ASSESSMENTS
In October 1999, a class action lawsuit was filed against the Company
in the United States District Court in the Eastern District of Missouri. The
lawsuit alleges, among other things, that the Company violated state and Federal
wage and overtime laws. The Company is in the process of investigating and
responding to the charges. The outcome or effect of this litigation on the
Company's operating results cannot be predicted at this time.
In January 1997, a class action securities lawsuit was filed against
the Company and certain of its executive officers in the U.S. District Court of
the Southern District of Florida. The lawsuit alleges, among other things, that
the Company and certain of its officers made materially false and misleading
statements regarding the Company's business performance and prospects. The
Company believes that the lawsuit has no basis, and intends to vigorously defend
the action. Although the ultimate outcome of the lawsuit cannot be predicted,
management does not believe the outcome of the lawsuit will have a material
adverse effect on the financial position, results of operations or cash flows of
the Company. However, there can be no assurance as to the ultimate resolution of
this matter.
In October 1997, two class action lawsuits were filed against the
Company in the State of California in the Superior Court of California. The
lawsuits allege, among other things, that the Company violated California wage,
overtime and vacation pay laws. In April 1999 the Company reached a settlement
on these actions which did not have a material adverse effect on the results of
operations of the Company.
There are no other significant legal proceedings pending against the
Company.
NOTE 12--STOCKHOLDERS' EQUITY
PREFERRED AND COMMON STOCK
The Company is authorized to issue 1,000,000 shares of preferred stock,
$.01 par value per share. The Company's Board of Directors has the authority to
fix the voting powers, dividend rates, liquidation preferences, conversion and
other rights. No preferred stock is outstanding.
At January 29, 2000 and January 30, 1999 the Company was authorized to
issue 100,000,000 shares of common stock, $.01 par value per share.
During fiscal year 1998, the Board of Directors authorized the
repurchase of up to 15.5 million shares of Sunglass Hut's outstanding common
stock and in March 2000, the Board of Directors increased the purchase
authorization to 20.8 million shares. The repurchase program authorizes
management, at its discretion, to make purchases from time to time on the open
market or in privately negotiated transactions, as well as to sell put options.
Stock repurchases and sales of put options would be based on management's
assessment of the Company's capital structure and liquidity, the market price of
the Company's common stock compared to management's assessment of its underlying
value, as well as regulatory, accounting and other factors. During fiscal year
1999, the Company repurchased and retired 4.5 million shares under these
authorizations at a cost of $44.9 million, and since the inception of the stock
repurchase program, the Company has repurchased 12.8 million shares at a cost of
$95.1 million.
37
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 13--EMPLOYEE BENEFIT PLANS
STOCK-BASED COMPENSATION PLAN
Effective March 31, 1996, the Company adopted the Sunglass Hut
International, Inc. 1996 Executive Incentive Compensation Plan (the "1996 Plan")
for key employees, officers, non-employee directors and independent contractors,
which superseded the Company's previous stock-based compensation plan. The 1996
Plan provides for grants of stock options, stock appreciation rights, restricted
common stock and other related awards that may be settled in cash, stock or
other property. The total number of common shares subject to grant under the
1996 Plan is limited to 6,000,000, as adjusted, based on the 1996 Plan's
formula, for issuances, redemptions, forfeitures and certain outstanding awards
plan. As of fiscal year end 1999, 1,008,986 common shares remained available for
grant under the 1996 Plan. Options granted generally have a ten-year term, an
exercise price equal to the fair market value of the Company's stock on the date
of grant and vest equally over three or four years.
In December 1998, the Company's Board of Directors approved the
exchange of certain stock options outstanding which were granted during 1995 and
1996. Options granted during 1995 and 1996, which had exercise prices of $13.94
and $30.50, respectively, were exchanged for fewer options at an exercise price
of $6.00. The exchange ratio between the original options and the new options,
based on an option valuation formula, resulted in the cancellation of
approximately 279,000 options and the issuance of 106,000 options. The exchange
was made available to all employees who held outstanding options that were
granted during 1995 or 1996 on a voluntary basis. The exchanged options were
issued with the same vesting and expiration schedule as the original options.
A summary of the status of the Company's stock-based compensation plans
as of the end of fiscal years 1999, 1998 and 1997, and changes during the fiscal
years then ended is presented below:
<TABLE>
<CAPTION>
FISCAL
--------------------------------------------------------------------------------------------------
1999 1998 1997
------------------------------- ------------------------------- ----------------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
FIXED OPTIONS SHARES EXERCISE PRICE SHARES EXERCISE PRICE SHARES EXERCISE PRICE
- -------------------------------- ------------- ---------------- ------------- ---------------- ------------- -------------------
(IN (IN (IN
THOUSANDS) THOUSANDS) THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Outstanding, beginning of year 4,381 $ 6.47 3,139 $ 7.83 2,073 $ 9.55
Granted 1,379 10.97 2,213 7.17 1,562 7.06
Exercised (653) 5.48 (78) 5.05 (31) 1.58
Forfeited (649) 9.52 (893) 13.25 (465) 13.35
------------- ------------- -------------
Outstanding, end of year 4,458 7.60 4,381 6.47 3,139 7.83
============= ============= =============
Options exercisable 2,072 1,899 1,376
============= ============= =============
</TABLE>
The following table summarizes information about stock options
outstanding at fiscal 1999 yearend:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------------------------------- --------------------------------------
WEIGHTED
AVERAGE WEIGHTED- OPTIONS WEIGHTED
OPTIONS REMAINING AVERAGE EXERCISABLE AVERAGE
RANGE OF EXERCISE OUTSTANDING AT CONTRACTUAL EXERCISE AT EXERCISE
PRICES 1/29/00 LIFE PRICE 1/29/00 PRICE
- --------------------- ---------------- --------------- -------------- ----------------- -----------------
(IN THOUSANDS) (YEARS) (IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
$ 0.25 to $3.75 667 1.8 $ 1.02 634 $ 0.88
5.44 to 9.75 2,521 7.5 7.15 1,303 7.16
10.00 to 15.25 1,179 8.6 10.95 85 13.44
15.30 to 18.00 41 9.4 17.08 -- --
30.81 50 0.6 30.81 50 30.81
- --------------------- ---------------- -----------------
$ 0.25 to $30.81 4,458 2,072
===================== ================ =================
</TABLE>
38
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 13-- EMPLOYEE BENEFIT PLANS--(CONTINUED)
As permitted under SFAS No. 123, "Accounting for Stock-Based
Compensation", the Company accounts for stock-based employee compensation
arrangements in accordance with Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees", whereby no compensation cost is
deducted in determining net income (loss). Had the Company recorded stock-based
compensation cost for options granted in fiscal 1999, 1998 and 1997 pursuant to
SFAS No. 123 (using the Black-Scholes options pricing model) net income (loss)
and diluted net income (loss) per share, including the assumptions used in these
calculations, would have been as follows:
<TABLE>
<CAPTION>
FISCAL
-------------------------------------------------------------------
1999 1998 1997
--------------------- ------------------- -------------------
<S> <C> <C> <C>
Pro forma net income (loss) $ 22,329,000 $ 16,346,000 $ (71,501,000)
Pro forma diluted net income (loss) per share $ 0.48 $ 0.32 $ (1.31)
Pro forma weighted average fair value of
options granted $ 5.63 $ 4.12 $ 3.90
Risk free interest rates 4.75% to 6.41% 4.46% to 5.75% 5.49% to 6.95%
Expected lives 4.1 years 6.0 years 6.0 years
Expected volatility 60% 54% 48%
Expected dividends $ -- $ -- $ --
</TABLE>
SAVINGS PLAN
The Company has an employee savings plan (the "Savings Plan") pursuant
to Section 401(k) of the Internal Revenue Code. All employees who are age 21 or
older and who have been credited with at least 1,000 hours of service within 12
consecutive months are eligible to participate in the Savings Plan. Employees
may elect to contribute to the Savings Plan through payroll deductions in an
amount not to exceed the amount permitted under the Internal Revenue Code. The
Company makes matching contributions equal to 50% of the participant's eligible
tax deferred contribution to a maximum of 5% of their compensation on behalf of
the participants. Employees are fully vested in their contributions. Company
contributions vest at a rate of 20% on February 1 of each year, provided that
the participant has completed one full year of employment with the Company as of
such date.
During fiscal years 1999, 1998 and 1997, the Company's contributions to
the Savings Plan aggregated $413,000, $324,000, and $250,000, respectively.
STOCK PURCHASE PLAN
In February 1996, the Company implemented an employee stock purchase
plan (the "Stock Purchase Plan"). The Stock Purchase Plan enables qualified
employees of the Company to subscribe to shares of the Company's common stock on
periodic offering dates at a purchase price equal to the fair market value of
the shares on such dates.
NOTE 14--SEGMENT AND GEOGRAPHIC INFORMATION
The Company operates in the retail sunglass and watch industries and in
markets throughout the world. The basis for determining the Company's operating
segments is the manner in which financial information is used by the Company in
its operations. Management operates and organizes itself according to business
units, which consist of the Company's different specialty store concepts across
geographic locations. Accordingly, the North America segment (comprised of the
United States, Canada and the Caribbean) includes sunglass, watch and Combo
retail operations in this geographic market. Over ninety percent of the North
America segment's net sales are derived from sales of sunglasses. The Other
segment reported herein includes the sunglass, watch and Combo retail operations
in other geographic locations, primarily Europe and Australia. The Company
evaluates performance and allocates resources based on profit or loss from
operations. The accounting policies of the reportable segment are the same as
those described in the summary of significant accounting policies. All
intercompany revenues and expenses are eliminated in computing revenues and
earnings (loss) before interest and taxes.
39
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 14--SEGMENT AND GEOGRAPHIC INFORMATION--(CONTINUED)
BUSINESS SEGMENTS
<TABLE>
<CAPTION>
EARNINGS (LOSS) DEPRECIATION
BEFORE INTEREST AND
NET SALES AND TAXES (1) AMORTIZATION ASSETS
--------------- ----------------- ----------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
1999
North America $ 552,811 $ 48,471 $ 25,381 $ 248,019
Other 82,792 3,948 2,334 35,484
--------------- ----------------- ----------------- -------------
635,603 52,419 27,715 283,503
Restructuring expense reversal -- 399 -- --
--------------- ----------------- ----------------- -------------
Total $ 635,603 $ 52,818 $ 27,715 $ 283,503
=============== ================= ================= =============
1998
North America $ 528,023 $ 41,575 $ 23,617 $ 233,310
Other 73,931 (1,181) 1,787 25,044
--------------- ----------------- ----------------- -------------
601,954 40,394 25,404 258,354
Restructuring expense reversal -- 371 -- --
--------------- ----------------- ----------------- -------------
Total $ 601,954 $ 40,765 $ 25,404 $ 258,354
=============== ================= ================= =============
1997
North America $ 497,997 $ 28,590 $ 24,940 $ 261,827
Other 75,843 (6,807) 4,574 34,865
--------------- ----------------- ----------------- -------------
573,840 21,783 29,514 296,692
Restructuring expenses/asset impairment charges
and other expenses(2) -- (87,065) 1,220 --
--------------- ----------------- ----------------- -------------
573,840 (65,282) 30,734 296,692
Discontinued operations(3) -- -- -- 2,461
--------------- ----------------- ----------------- -------------
Total $ 573,840 $ (65,282) $ 30,734 $ 299,153
=============== ================= ================= =============
<FN>
(1) Represents earnings (loss) from continuing operations before interest,
income taxes and cumulative effect of accounting change.
(2) Represents (a) $54.6 million of restructuring expenses and asset
impairment charges, (b) $13.0 million of inventory disposition costs,
(c) $2.3 million of costs related to the adoption of a new accounting
principle for internal use software and (d) $17.1 million of other
costs and expenses (see Notes 2, 3 and "Overview - Management
Discussion and Analysis of Financial Condition and Results of
Operations" for further information).
(3) Represents net assets of discontinued operations (see Note 4 for
further information).
</FN>
</TABLE>
40
<PAGE>
SUNGLASS HUT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NOTE 14--SEGMENT AND GEOGRAPHIC INFORMATION--(CONTINUED)
GEOGRAPHIC INFORMATION
The following represents net sales and long-lived assets by geographic
location:
FISCAL
----------------------------------------------------
1999 1998 1997
--------------- -------------- --------------
(IN THOUSANDS)
Net sales:
United States $ 515,511 $ 490,026 $ 461,495
Other Countries 120,092 111,928 112,345
--------------- -------------- -------------
Total $ 635,603 $ 601,954 $ 573,840
=============== ============== =============
Long-lived assets:
United States $ 119,931 $ 101,116 $ 107,002
Other Countries 13,098 16,357 17,930
--------------- -------------- -------------
Total $ 133,029 $ 117,473 $ 124,932
=============== ============== =============
NOTE 15--QUARTERLY FINANCIAL DATA (UNAUDITED)
Unaudited summarized financial data by quarter for fiscal 1999 and 1998
is as follows (in thousands, except per share data):
<TABLE>
<CAPTION>
FISCAL 1999
---------------------------------------------------------------------------------------
FIRST SECOND THIRD FOURTH TOTAL
-------------- --------------- ------------- ---------------- ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 152,581 $ 199,620 $ 132,288 $ 151,114 $ 635,603
Gross profit 63,569 89,669 51,431 62,074 266,743
Net income (loss): $ 6,046 $ 20,543 $ (1,564) $ 1,725 $ 26,750
============== =============== ============= ================ ============
Net income (loss) per share:
Basic--
Continuing operations $ 0.13 $ 0.44 $ (0.03) $ 0.06 $ 0.60
Discontinued operations - - - (0.02) (0.02)
-------------- --------------- ------------- ---------------- ------------
Net income (loss) $ 0.13 $ 0.44 $ (0.03) $ 0.04 $ 0.58
============== =============== ============= ================ ============
Diluted
Continuing operations $ 0.13 $ 0.42 $ (0.03) $ 0.05 $ 0.58
Discontinued operations - - - (0.01) (0.01)
-------------- --------------- ------------- ---------------- ------------
Net income (loss) $ 0.13 $ 0.42 $ (0.03) $ 0.04 $ 0.57
============== =============== ============= ================ ============
<CAPTION>
FISCAL 1998
---------------------------------------------------------------------------------------
FIRST SECOND THIRD FOURTH TOTAL
-------------- --------------- ------------- ---------------- ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 146,646 $ 193,141 $ 122,832 $ 139,335 $ 601,954
Gross profit 59,129 86,487 45,040 54,775 245,431
Net income (loss): $ 3,846 $ 18,690 $ (4,005) $ 1,290 $ 19,821
============== =============== ============= ================ ============
Basic and diluted earnings (loss) per share $ 0.07 $ 0.34 $ (0.08) $ 0.03 $ 0.38
============== =============== ============= ================ ============
</TABLE>
41
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
The Proxy Statement for the Annual Meeting of Stockholders to be held
June 7, 2000 which, when filed pursuant to Regulation 14A under the Securities
Exchange Act of 1934, will be incorporated by reference in this Annual Report on
Form 10-K pursuant to General Instruction G(3) of Form 10-K, will provide the
information required under Part III (Items 10, 11, 12, and 13). Information with
respect to executive officers of the company appears under the caption
"Executive Officers of the Company" on pages 9 and 10 of Part I of this Form
10-K.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. FINANCIAL STATEMENTS. Reference is made to the Index set forth
on page 20 of this Annual Report on Form 10-K.
2. FINANCIAL STATEMENTS SCHEDULE. Reference is made to Schedule
II-Valuation And Qualifying Accounts on page 46 of this Annual
Report on Form 10-K. All other schedules for which provision is
made in the applicable accounting regulations of the Commission
are not required under the related instructions or are not
applicable, and therefore have been omitted.
The report of Independent Certified Public Accountants with
respect to Schedule II is also filed as part of this report.
3. EXHIBITS. * Indicates exhibits filed herewith.
** Management contract or compensatory plan
incorporated by reference from the document
listed.
EXHIBIT DESCRIPTION
------------ -----------
3.1 Registrant's Articles of Incorporation. Said Articles were last
filed as and are incorporated herein by reference to Exhibit
3.1 to Registrant's Registration Statement on Form S-1 (File
No. 33-77792).
3.2 Registrant's Amended and Restated Bylaws. Said Bylaws were last
filed as and are incorporated herein by reference to Exhibit
3.2 to Registrant's Registration Statement on Form S-1 (File
No. 33-77792).
4.1 Registration Rights Agreement, dated June 26, 1996, between
the Registrant and the initial purchasers of the 5 1/4%
Convertible Subordinated Notes due 2003. Filed as and
incorporated herein by reference to Exhibit 4.7 to
Registrant's Registration Statement on Form S-1 (File No.
33-77792).
4.2 Indenture, dated as of June 26, 1996, among the Registrant and
the Bank of New York for Convertible Subordinated Notes.
Filed as and incorporated herein by reference to Exhibit 4.8
to Registrant's Registration Statement on Form S-1 (File No.
33-77792).
10.1** Registrant's Amended and Restated Stock Option Plan, as amended.
Filed as and incorporated herein by reference to Exhibit
10.1 to the Form 10-K for the fiscal year ended January 31,
1998.
10.2** Sunglass Hut International, Inc. 1996 Executive Incentive
Compensation Plan. Filed as and incorporated herein by
reference to Exhibit 10.1 to Registrant's Registration
Statement on Form S-8 (File No. 333-20107).
10.3* ** Form of Indemnification Agreement between the Registrant and
each of its directors and certain executive officers.
10.4 Office Space Lease Agreement, dated as of October 28, 1993,
between The Travelers Insurance Company and the Registrant.
Filed as and incorporated herein by reference to Exhibit
10.2 to Registrant's Registration Statement on Form S-1
(File No. 33-59872).
10.5* Amendments to the main Office Space Lease Agreement, dated as of
November 23, 1994, July 30, 1996 and September 30, 1999
between Blumberg/Alhambra Partners, successor in interest to
The Travelers Insurance Company, and the Registrant.
10.6** Consulting and Management Services Agreement between Sunglass Hut
International, Inc. and Hauslein & Company, Inc. dated
February 24, 1997 (incorporated by reference to Exhibit
10.11 of the Registrant's Company's Report on form 10-Q for
the fiscal quarter ended May 3, 1997).
10.7 Stock Option Agreement between the Registrant and James N.
Hauslein (incorporated by reference to Exhibit 10.17 of the
Registrant's Company's Report on Form 10-Q for the fiscal
quarter ended November 1, 1997).
10.8 Revolving Credit Notes to BankBoston Retail Finance, Inc. dated
April 28, 1998 together with Loan and Security Agreement.
Filed as and incorporated herein by reference to Exhibit
10.11 of the Registrant's Report on Form 10-K for the fiscal
year ended January 31, 1998.
42
<PAGE>
EXHIBIT
- -------------
10.9 First Amendment dated November 30, 1998 to Loan and Security
Agreement dated April 28, 1998 with BankBoston Retail
Finance Inc. Filed as and incorporated herein by reference
to Exhibit 10.8 of the Registrant's Report on Form 10-K for
the fiscal year ended January 30, 1999.
10.10 Second Amendment dated January 13, 1999 to Loan and Security
Agreement dated April 28, 1998 with BankBoston Retail
Finance, Inc., together with First Amendment to Stock Pledge
Agreement, Guaranty of Shadescom, Inc., and Security
Agreement between BankBoston Retail Finance, Inc. and
Shadescom, Inc. Filed as and incorporated herein by
reference to Exhibit 10.9 of the Registrant's Report on Form
10-K for the fiscal year ended January 30, 1999.
21.1* Subsidiaries of the Registrant
23.1* Consent of Arthur Andersen LLP
27* Financial Data Schedule
The Company will furnish to any record or beneficial shareholder requesting a
copy of this Annual Report on Form 10-K a copy of any exhibit indicated in the
above list as filed with this Annual Report on Form 10-K upon payment to it of
its expenses in furnishing such exhibit.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the last quarter of the period
covered by this report.
(c) Exhibits Required by Item 601 of Regulation S-K.
The index to exhibits that are listed in Item 14(a)(3) of this report and
not incorporated by reference follows the "Signatures" section hereto and is
incorporated herein by reference.
(d) Financial Statement Schedules Required by Regulation S-X
Reference is made to Item 14(a)2.
43
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report on Form 10-K to
be signed on its behalf by the undersigned, thereunto duly authorized.
SUNGLASS HUT INTERNATIONAL, INC.
By: /s/ LARRY G. PETERSEN
-------------------------------------------------
Larry G. Petersen, Senior Vice President,
Finance and Chief Financial Officer
Dated: April 18, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons on behalf of the registrant
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ JOHN X. WATSON President, Chief Executive April 18, 2000
- --------------------------------------------- Officer and Director
John X. Watson (principal executive officer)
/s/ LARRY G. PETERSEN Senior Vice President, Finance and April 18, 2000
- --------------------------------------------- Chief Financial Officer
Larry G. Petersen (principal financial officer)
/s/ GEORGE L. PITA Vice President, Finance April 18, 2000
- --------------------------------------------- (principal accounting officer)
George L. Pita
/s/ JAMES N. HAUSLEIN Chairman of the Board April 18, 2000
- ---------------------------------------------
James N. Hauslein
/s/ ROHIT M. DESAI Director April 18, 2000
- ---------------------------------------------
Rohit M. Desai
/s/ JOHN H. DUERDEN Director April 18, 2000
- ---------------------------------------------
John H. Duerden
/s/ WILLIAM S. FIELD Director April 18, 2000
- ---------------------------------------------
William S. Field
/s/ ROBERT C. GRAYSON Director April 18, 2000
- ---------------------------------------------
Robert C. Grayson
/s/ WILLIAM E. PHILLIPS Director April 18, 2000
- ---------------------------------------------
William E. Phillips
</TABLE>
44
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS ON SCHEDULE
To the Stockholders
of Sunglass Hut International, Inc.:
We have audited in accordance with generally accepted auditing
standards, the financial statements included in Sunglass Hut International,
Inc.'s annual report included in this Form 10-K, and have issued our report
thereon dated March 22, 2000. Our audit was made for the purpose of forming an
opinion on those statements taken as a whole. The Financial Statement Schedule
II listed in Item 14 is presented for purposes of complying with the Securities
and Exchange Commission's rules and is not part of the basic financial
statements. This financial statement schedule has been subjected to the auditing
procedures applied in the audit of the basic financial statements and, in our
opinion, fairly states in all material respects the financial data required to
be set forth therein in relation to the basic financial statements taken as a
whole.
ARTHUR ANDERSEN LLP
Miami, Florida,
March 22, 2000.
45
<PAGE>
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
FISCAL YEARS 1999, 1998 AND 1997
<TABLE>
<CAPTION>
ADDITIONS NON-CASH ENDING
BEGINNING CHARGED TO CASH REDUCTIONS ACCRUAL
DESCRIPTION ACCRUAL INCOME REDUCTIONS (ADDITIONS) REVERSAL BALANCE
----------------------------------- ------------ ------------- ------------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Restructuring accrual
1999 $ 3,604 $ -- $ 2,509 $ (485) $ 399 $ 1,181
1998 25,789 4,727 4,777 17,037 5,098 3,604
1997 15,096 54,660 7,509 36,458 - 25,789
Accrual for estimated loss from
disposition of discontinued
operations (EyeX)
1999 $ 1,396 $ 1,200 $ 1,226 $ 75 $ -- $ 1,295
1998 13,260 -- 3,106 8,758 -- 1,396
1997 -- 13,260 -- -- -- 13,260
</TABLE>
46
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
------- -----------
10.3 Form of Indemnification Agreement between the Registrant and
each of its directors and certain executive officers.
10.5 Amendments to the main Office Space Lease Agreement, dated as of
November 23, 1994, July 30, 1996 and September 30, 1999
between Blumberg/Alhambra Partners, successor in interest to
The Travelers Insurance Company, and the Registrant.
21.1 Subsidiaries of the Registrant
23.1 Consent of Arthur Andersen LLP
27 Financial Data Schedule
EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement"), is made and entered into
as of the ___ day of _________, by and between SUNGLASS HUT INTERNATIONAL, INC.,
a Florida corporation (the "Company"), and _______________ (the "Indemnitee").
RECITALS
A. The Company desires to retain the services of the Indemnitee as a [a
director] [an executive officer] of the Company.
B. As a condition to the Indemnitee's agreement to serve the Company as
such, the Indemnitee requires that he be indemnified from liability to the
fullest extent permitted by law.
C. The Company is willing to indemnify the Indemnitee to the fullest
extent permitted by law in order to retain the services of the Indemnitee.
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, the Company and the Indemnitee agree as follows:
SECTION 1. MANDATORY INDEMNIFICATION IN PROCEEDINGS OTHER THAN THOSE BY
OR ON THE RIGHT OF THE COMPANY. Subject to Section 4 hereof, the Company shall
indemnify and hold harmless the Indemnitee from and against any and all claims,
damages, expenses (including attorneys' fees), judgments, penalties, fines
(including excise taxes assessed with respect to an employee benefit plan),
amounts paid in settlement and all other liabilities actually and reasonably
incurred or paid by him in connection with the investigation, defense,
prosecution, settlement or appeal of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise (other than an action by or in the right of the
Company) and to which the Indemnitee was or is a party or is threatened to be
made a party by reason of the fact that the Indemnitee is or was an officer,
director, shareholder, employee or agent of the Company, or is or was serving at
the request of the Company as an officer, director, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, or by reason of anything done or not done by
the Indemnitee in any such capacity or capacities, provided that the Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
SECTION 2. MANDATORY INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT
OF THE COMPANY. Subject to Section 4 hereof, the Company shall indemnify and
hold harmless the Indemnitee from and against any and all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably incurred
or paid by him in connection with the investigation, defense, prosecution,
settlement or appeal of any threatened, pending or completed action, suit or
proceeding by or in the right of the Company to procure a judgment in its favor,
whether civil, criminal, administrative, investigative or otherwise, and to
which the Indemnitee was or is a party or is threatened to be made a party by
reason of the fact that the Indemnitee is or was an officer, director,
shareholder, employee or agent of the Company, or is or was serving at the
request of the Company as an officer, director, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of anything done or not done by
the Indemnitee in any such capacity or capacities, provided that (i) the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and (ii) no indemnification
shall be made under this Section 2 in respect of any claim, issue or matter as
to which the Indemnitee shall have been adjudged to be liable to the Company for
misconduct in the performance of his duty to the Company unless and only to the
extent
<PAGE>
that the court in which such action, suit or proceeding was brought (or any
other court of competent jurisdiction) shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
SECTION 3. REIMBURSEMENT OF EXPENSES FOLLOWING ADJUDICATION OF
NEGLIGENCE. The Company shall reimburse the Indemnitee for any expenses
(including attorney's fees) and amounts paid in settlement actually and
reasonably incurred or paid by him in connection with the investigation,
defense, settlement or appeal of any action or suit described in Section 2
hereof that results in an adjudication that the Indemnitee was liable for
negligence, gross negligence or recklessness (but not willful misconduct) in the
performance of his duty to the Company; provided, however, that the Indemnitee
acted in good faith and in a manner he believed to be in the best interests of
the Company.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
Sections 1 and 2 hereof (unless ordered by a court) and any reimbursement made
under Section 3 hereof shall be made by the Company only as authorized in the
specific case upon a determination (the "Determination") that indemnification or
reimbursement of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct set forth in Section 1, 2
or 3 hereof, as the case may be. Subject to Sections 5.6, 5.7, 5.8 and 8 of this
Agreement, the Determination shall be made in the following order of preference:
(1) first, by the Company's Board of Directors (the
"Board") by majority vote or consent of a quorum consisting of directors
("Disinterested Directors") who are not, at the time of the Determination, named
parties to such action, suit or proceeding; or
(2) next, if such a quorum of Disinterested Directors
cannot be obtained, by majority vote or consent of a committee duly designated
by the Board (in which designation all directors, whether or not Disinterested
Directors, may participate) consisting solely of two or more Disinterested
Directors; or
(3) next, if such a committee cannot be designated,
by any independent legal counsel (who may be any outside counsel regularly
employed by the Company); or
(4) next, if such legal counsel determination cannot
be obtained, by vote or consent of the holders of a majority of the Company's
Common Stock that are represented in person or by proxy at a meeting called for
such purpose and, except in the case of a Determination pursuant to Section 5.7
hereof, that were not parties to such action, suit or proceeding.
4.1 NO PRESUMPTIONS. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Company, and with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
4.2 BENEFIT PLAN CONDUCT. The Indemnitee's conduct with
respect to an employee benefit plan for a purpose he reasonably believed to be
in the interests of the participants in and beneficiaries of the plan shall be
deemed to be conduct that the Indemnitee reasonably believed to be not opposed
to the best interests of the Company.
4.3 RELIANCE AS SAFE HARBOR. For purposes of any Determination
hereunder, the Indemnitee shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, or, with respect to any criminal action or proceeding,
- 2 -
<PAGE>
to have had no reasonable cause to believe his conduct was unlawful, if his
action is based on (i) the records or books of account of the Company or another
enterprise, including financial statements, (ii) information supplied to him by
the officers of the Company or another enterprise in the course of their duties,
(iii) the advice of legal counsel for the Company or another enterprise, or (iv)
information or records given or reports made to the Company or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company or another enterprise.
The term "another enterprise" as used in this Section 4.3 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which the Indemnitee is or was serving at the request of the
Company as an officer, director, partner, trustee, employee or agent. The
provisions of this Section 4.3 shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in Sections 1, 2 or 3 hereof,
as the case may be.
4.4 SUCCESS ON MERITS OR OTHERWISE. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described in Section 1 or 2 hereof, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal thereof. For purposes of this
Section 4.4, the term "successful on the merits or otherwise" shall include, but
not be limited to, (i) any termination, withdrawal, or dismissal (with or
without prejudice) of any claim, action, suit or proceeding against the
Indemnitee without any express finding of liability or guilt against him, (ii)
the expiration of 120 days after the making of any claim or threat of an action,
suit or proceeding without the institution of the same and without any promise
or payment made to induce a settlement, or (iii) the settlement of any action,
suit or proceeding under Section 1, 2 or 3 hereof pursuant to which the
Indemnitee pays less than $50,000.
4.5 PARTIAL INDEMNIFICATION OR REIMBURSEMENT. If the
Indemnitee is entitled under any provision of this Agreement to indemnification
and/or reimbursement by the Company for some or a portion of the claims,
damages, expenses (including attorneys' fees), judgments, fines or amounts paid
in settlement by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any action specified in Section 1, 2 or 3 hereof, but
not, however, for the total amount thereof, the Company shall nevertheless
indemnify and/or reimburse the Indemnitee for the portion thereof to which the
Indemnitee is entitled. The party or parties making the Determination shall
determine the portion (if less than all) of such claims, damages, expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement for
which the Indemnitee is entitled to indemnification and/or reimbursement under
this Agreement.
4.6 LIMITATIONS ON INDEMNIFICATION. No indemnification
pursuant to Sections 1 or 2 hereof shall be paid by the Company if a judgment
(after exhaustion of all appeals) or other final adjudication determines that
the Indemnitee's actions, or omissions to act, were material to the cause of
action so adjudicated and constitute:
(a) a violation of criminal law, unless the
Indemnitee had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful;
(b) a transaction from which the Indemnitee derived
an improper personal benefit within the meaning of Section 607.0850(7) of the
Florida Business Corporation Act;
(c) in the event that the Indemnitee is a director of
the Company, a circumstance under which the liability provisions of Section
607.0834 of the Florida Business Corporation Act are applicable; or
- 3 -
<PAGE>
(d) willful misconduct or conscious disregard for the
best interests of the Company in a proceeding by or in the right of the Company
to procure a judgment in its favor or in a proceeding by or in the right of a
shareholder of the Company.
SECTION 5. PROCEDURES FOR DETERMINATION OF WHETHER STANDARDS HAVE BEEN
SATISFIED.
5.1 COSTS. All costs of making the Determination required by
Section 4 hereof shall be borne solely by the Company, including, but not
limited to, the costs of legal counsel, proxy solicitations and judicial
determinations. The Company shall also be solely responsible for paying (i) all
reasonable expenses incurred by the Indemnitee to enforce this Agreement,
including, but not limited to, the costs incurred by the Indemnitee to obtain
court-ordered indemnification pursuant to Section 8 hereof, regardless of the
outcome of any such application or proceeding, and (ii) all costs of defending
any suits or proceedings challenging payments to the Indemnitee under this
Agreement.
5.2 TIMING OF THE DETERMINATION. The Company shall use its
best efforts to make the Determination contemplated by Section 4 hereof
promptly. In addition, the Company agrees:
(a) if the Determination is to be made by the Board
or a committee thereof, such Determination shall be made not later than 30 days
after a written request for a Determination (a "Request") is delivered to the
Company by the Indemnitee;
(b) if the Determination is to be made by independent
legal counsel, such Determination shall be made not later than 45 days after a
Request is delivered to the Company by the Indemnitee; and
(c) if the Determination is to be made by the
shareholders of the Company, such Determination shall be made not later than 120
days after a Request is delivered to the Company by the Indemnitee.
The failure to make a Determination within the above-specified time period shall
constitute a Determination approving full indemnification or reimbursement of
the Indemnitee. Notwithstanding anything herein to the contrary, a Determination
may be made in advance of (i) the Indemnitee's payment (or incurring) of
expenses with respect to which indemnification or reimbursement is sought,
and/or (ii) final disposition of the action, suit or proceeding with respect to
which indemnification or reimbursement is sought.
5.3 REASONABLENESS OF EXPENSES. The evaluation and finding as
to the reasonableness of expenses incurred by the Indemnitee for purposes of
this Agreement shall be made (in the following order of preference) within 30
days after the Indemnitee's delivery to the Company of a Request that includes a
reasonable accounting of expenses incurred:
(a) first, by the Board by majority vote or consent
of a quorum consisting of Disinterested Directors; or
(b) next, if such a quorum cannot be obtained, by
majority vote or consent of a committee duly designated by the Board (in which
designation all directors, whether or not Disinterested Directors, may
participate), consisting solely of two or more Disinterested Directors; or
(c) next, if such a committee cannot be designated,
by any independent legal counsel (who may be any outside counsel regularly
employed by the Company);
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<PAGE>
provided, however, that if a determination as to reasonableness of expenses is
not made under any of the foregoing subsections (a), (b) and (c), such
determination shall be made, not later than 120 days after the Indemnitee's
delivery of such Request, by vote or consent of the holders of a majority of the
Company's Common Stock that are represented in person or by proxy at a meeting
called for such purpose.
All expenses shall be considered reasonable for purposes of this Agreement if
the finding contemplated by this Section 5.3 is not made within the prescribed
time. The finding required by this Section 5.3 may be made in advance of the
payment (or incurring) of the expenses for which indemnification or
reimbursement is sought.
5.4 PAYMENT OF INDEMNIFIED AMOUNT. Immediately following a
Determination that the Indemnitee has met the applicable standard of conduct set
forth in Section 1, 2 or 3 hereof, as the case may be, and the finding of
reasonableness of expenses contemplated by Section 5.3 hereof, or the passage of
time prescribed for making such determination(s), the Company shall pay to the
Indemnitee in cash the amount to which the Indemnitee is entitled to be
indemnified and/or reimbursed, as the case may be, without further authorization
or action by the Board; provided, however, that the expenses for which
indemnification or reimbursement is sought have actually been incurred by the
Indemnitee.
5.5 SHAREHOLDER VOTE ON DETERMINATION. Notwithstanding the
provisions of Section 607.0850 of the Florida Business Corporation Act, the
Indemnitee and any other shareholder who is a party to the proceeding for which
indemnification or reimbursement is sought shall be entitled to vote on any
Determination to be made by the Company's shareholders pursuant to Section 5.7
hereof. In addition, in connection with each meeting at which a shareholder
Determination will be made, the Company shall solicit proxies that expressly
include a proposal to indemnify or reimburse the Indemnitee. Any Company proxy
statement relating to a proposal to indemnify or reimburse the Indemnitee shall
not include a recommendation against indemnification or reimbursement.
5.6 SELECTION OF INDEPENDENT LEGAL COUNSEL. If the
Determination required under Section 4 is to be made by independent legal
counsel, such counsel shall be selected by the Indemnitee with the approval of
the Board, which approval shall not be unreasonably withheld. The fees and
expenses incurred by counsel in making any Determination (including
Determinations pursuant to Section 5.8 hereof) shall be borne solely by the
Company regardless of the results of any Determination and, if requested by
counsel, the Company shall give such counsel an appropriate written agreement
with respect to the payment of their fees and expenses and such other matters as
may be reasonably requested by counsel.
5.7 RIGHT OF INDEMNITEE TO APPEAL AN ADVERSE DETERMINATION BY
BOARD. If a Determination is made by the Board or a committee thereof that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
1, 2 or 3 hereof, upon the written request of the Indemnitee and the
Indemnitee's delivery of $500 to the Company, the Company shall cause a new
Determination to be made by the Company's shareholders at the next regular or
special meeting of shareholders. Subject to Section 8 hereof, such Determination
by the Company's shareholders shall be binding and conclusive for all purposes
of this Agreement.
5.8 RIGHT OF INDEMNITEE TO SELECT FORUM FOR DETERMINATION. If,
at any time subsequent to the date of this Agreement, "Continuing Directors" do
not constitute a majority of the members of the Board, or there is otherwise a
change in control of the Company (as contemplated by Item 403(c) of Regulation
S-K), then upon the request of the Indemnitee, the Company shall cause the
Determination required by Section 4 hereof to be made by independent legal
counsel selected by the Indemnitee and approved by the Board (which approval
shall not be unreasonably withheld), which counsel shall be deemed to satisfy
the requirements of clause (3) of Section 4 hereof. If none of the legal
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<PAGE>
counsel selected by the Indemnitee are willing and/or able to make the
Determination, then the Company shall cause the Determination to be made by a
majority vote or consent of a Board committee consisting solely of Continuing
Directors. For purposes of this Agreement, a "Continuing Director" means either
a member of the Board at the date of this Agreement or a person nominated to
serve as a member of the Board by a majority of the then Continuing Directors.
5.9 ACCESS BY INDEMNITEE TO DETERMINATION. The Company shall
afford to the Indemnitee and his representatives ample opportunity to present
evidence of the facts upon which the Indemnitee relies for indemnification or
reimbursement, together with other information relating to any requested
Determination. The Company shall also afford the Indemnitee the reasonable
opportunity to include such evidence and information in any Company proxy
statement relating to a shareholder Determination.
5.10 JUDICIAL DETERMINATIONS IN DERIVATIVE SUITS. In each
action or suit described in Section 2 hereof, the Company shall cause its
counsel to use its best efforts to obtain from the Court in which such action or
suit was brought (i) an express adjudication whether the Indemnitee is liable
for negligence or misconduct in the performance of his duty to the Company, and,
if the Indemnitee is so liable, (ii) a determination whether and to what extent,
despite the adjudication of liability but in view of all the circumstances of
the case (including this Agreement), the Indemnitee is fairly and reasonably
entitled to indemnification.
SECTION 6. SCOPE OF INDEMNITY. The actions, suits and proceedings
described in Sections 1 and 2 hereof shall include, for purposes of this
Agreement, any actions that involve, directly or indirectly, activities of the
Indemnitee both in his official capacities as a Company director or officer and
actions taken in another capacity while serving as director or officer,
including, but not limited to, actions or proceedings involving (i) compensation
paid to the Indemnitee by the Company, (ii) activities by the Indemnitee on
behalf of the Company, including actions in which the Indemnitee is plaintiff,
(iii) actions alleging a misappropriation of a "corporate opportunity," (iv)
responses to a takeover attempt or threatened takeover attempt of the Company,
(v) transactions by the Indemnitee in Company securities, and (vi) the
Indemnitee's preparation for and appearance (or potential appearance) as a
witness in any proceeding relating, directly or indirectly, to the Company. In
addition, the Company agrees that, for purposes of this Agreement, all services
performed by the Indemnitee on behalf of, in connection with or related to any
subsidiary of the Company, any employee benefit plan established for the benefit
of employees of the Company or any subsidiary, any corporation or partnership or
other entity in which the Company or any subsidiary has a 5% ownership interest,
or any other affiliate of the Company, shall be deemed to be at the request of
the Company.
SECTION 7. ADVANCE FOR EXPENSES.
7.1 MANDATORY ADVANCE. Expenses (including attorneys' fees,
court costs, judgments, fines, amounts paid in settlement and other payments)
incurred by the Indemnitee in investigating, defending, settling or appealing
any action, suit or proceeding described in Section 1 or 2 hereof shall be paid
by the Company in advance of the final disposition of such action, suit or
proceeding. The Company shall promptly pay the amount of such expenses to the
Indemnitee, but in no event later than 10 days following the Indemnitee's
delivery to the Company of a written request for an advance pursuant to this
Section 7, together with a reasonable accounting of such expenses.
7.2 UNDERTAKING TO REPAY. The Indemnitee hereby undertakes and
agrees to repay to the Company any advances made pursuant to this Section 7 if
and to the extent that it shall ultimately be found that the Indemnitee is not
entitled to be indemnified by the Company for such amounts.
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<PAGE>
7.3 MISCELLANEOUS. The Company shall make the advances
contemplated by this Section 7 regardless of the Indemnitee's financial ability
to make repayment, and regardless whether indemnification of the Indemnitee by
the Company will ultimately be required. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest-free.
SECTION 8. COURT-ORDERED INDEMNIFICATION. Regardless whether the
Indemnitee has met the standard of conduct set forth in Sections 1, 2 or 3
hereof, as the case may be, and notwithstanding the presence or absence of any
Determination whether such standards have been satisfied, the Indemnitee may
apply for indemnification (and/or reimbursement pursuant to Section 3 or 12
hereof) to the court conducting any proceeding to which the Indemnitee is a
party or to any other court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court considers necessary,
may order indemnification (and/or reimbursement) if it determines the Indemnitee
is fairly and reasonably entitled to indemnification (and/or reimbursement) in
view of all the relevant circumstances (including this Agreement).
SECTION 9. NONDISCLOSURE OF PAYMENTS. Except as expressly required by
applicable laws, neither party shall disclose any payments under this Agreement
unless prior approval of the other party is obtained. Any payments to the
Indemnitee that must be disclosed shall, unless otherwise required by law, be
described only in Company proxy or information statements relating to special
and/or annual meetings of the Company's shareholders, and the Company shall
afford the Indemnitee the reasonable opportunity to review all such disclosures
and, if requested, to explain in such statement any mitigating circumstances
regarding the events reported.
SECTION 10. COVENANT NOT TO SUE, LIMITATION OF ACTIONS AND RELEASE OF
CLAIMS. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company (or any of its subsidiaries) against the
Indemnitee, his spouse, heirs, executors, personal representatives or
administrators after the expiration of two (2) years following the date the
Indemnitee ceases (for any reason) to serve as either an executive officer or
director of the Company, and any and all such claims and causes of action of the
Company (or any of its subsidiaries) shall be extinguished and deemed released
unless asserted by filing of a legal action within such two (2) year period.
SECTION 11. INDEMNIFICATION OF INDEMNITEE'S ESTATE. Notwithstanding any
other provision of this Agreement, and regardless whether indemnification of the
Indemnitee would be permitted and/or required under this Agreement, if the
Indemnitee is deceased, the Company shall indemnify and hold harmless the
Indemnitee's estate, spouse, heirs, administrators, personal representatives and
executors (collectively the "Indemnitee's Estate") against, and the Company
shall assume, any and all claims, damages, expenses (including attorneys' fees),
penalties, judgments, fines and amounts paid in settlement actually incurred by
the Indemnitee or the Indemnitee's Estate in connection with the investigation,
defense, settlement or appeal of any action described in Section 1 or 2 hereof.
Indemnification of the Indemnitee's Estate pursuant to this Section 11 shall be
mandatory and not require a Determination or any other finding that the
Indemnitee's conduct satisfied a particular standard of conduct.
SECTION 12. REIMBURSEMENT OF ALL LEGAL EXPENSES. Notwithstanding any
other provision of this Agreement, and regardless of the presence or absence of
any Determination, the Company promptly (but not later than 30 days following
the Indemnitee's submission of a reasonable accounting) shall reimburse the
Indemnitee for all attorneys' fees and related court costs and other expenses
incurred by the Indemnitee (but not for judgments, penalties, fines or amounts
paid in settlement) in connection with the investigation, defense, settlement or
appeal of any action described in Section 1 or 2 hereof (including, but not
limited to, the matters specified in Section 6 hereof).
SECTION 13. MISCELLANEOUS.
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<PAGE>
13.1 NOTICE PROVISION. Any notice, payment, demand or
communication required or permitted to be delivered or given by the provisions
of this Agreement shall be deemed to have been effectively delivered or given
and received on the date personally delivered to the respective party to whom it
is directed, or when deposited by registered or certified mail, with postage and
charges prepaid and addressed to the parties at the respective addresses set
forth below opposite their signatures to this Agreement, or to such other
address as to which notice is given.
13.2 ENTIRE AGREEMENT. Except for the Company's Articles of
Incorporation, this Agreement constitutes the entire understanding of the
parties and supersedes all prior understandings, whether written or oral,
between the parties with respect to the subject matter of this Agreement.
13.3 SEVERABILITY OF PROVISIONS. If any provision of this
Agreement is held to be illegal, invalid, or unenforceable under present or
future laws effective during the term of this Agreement, such provision shall be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each such illegal, invalid, or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid, and enforceable.
13.4 APPLICABLE LAW. This Agreement shall be governed by and
construed under the laws of the State of Florida.
13.5 EXECUTION IN COUNTERPARTS. This Agreement and any
amendment may be executed simultaneously or in two or more counterparts, each of
which together shall constitute one and the same instrument.
13.6 COOPERATION AND INTENT. The Company shall cooperate in
good faith with the Indemnitee and use its best efforts to ensure that the
Indemnitee is indemnified and/or reimbursed for liabilities described herein to
the fullest extent permitted by law.
13.7 AMENDMENT. No amendment, modification or alteration of
the terms of this Agreement shall be binding unless in writing, dated subsequent
to the date of this Agreement, and executed by the parties.
13.8 BINDING EFFECT. The obligations of the Company to the
Indemnitee hereunder shall survive and continue as to the Indemnitee even if the
Indemnitee ceases to be a director, officer, employee and/or agent of the
Company. Each and all of the covenants, terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the successors to the Company
and, upon the death of the Indemnitee, to the benefit of the estate, heirs,
executors, administrators and personal representatives of the Indemnitee.
13.9 GENDER AND NUMBER. Wherever the context shall so require,
all words herein in the male gender shall be deemed to include the female or
neuter gender, all singular words shall include the plural and all plural words
shall include the singular.
13.10 NONEXCLUSIVITY. The rights of indemnification and
reimbursement provided in this Agreement shall be in addition to any rights to
which the Indemnitee may otherwise be entitled by statute, bylaw, agreement,
vote of shareholders or otherwise.
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<PAGE>
13.11 EFFECTIVE DATE. The provisions of this Agreement shall
cover claims, actions, suits and proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged acts or
omissions which heretofore have taken place.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
ADDRESS: THE COMPANY:
- ------- -----------
255 Alhambra Circle SUNGLASS HUT INTERNATIONAL, INC.
Coral Gables, Florida 33134
ATTENTION: President & CEO
By:__________________________________
John X. Watson
ADDRESS: THE INDEMNITEE:
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255 Alhambra Circle By: _________________________________
Coral Gables, Florida 33134
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EXHIBIT 10.5
FIRST MODIFICATION TO OFFICE SPACE LEASE AGREEMENT
This First Modification to Office Space Lease Agreement ("First
Modification") is made and entered into as of the 23rd day of November, 1994, by
and between BLUMBERG/ALHAMBRA PARTNERS ("Landlord"), successor in interest to
The Travelers Insurance Company ("Former Landlord") and SUNGLASS HUT
INTERNATIONAL, INC. ("Tenant").
RECITATIONS
A. By Office Space Lease Agreement ("Lease") dated October 28, 1993, by and
between Former Landlord and Tenant, Former Landlord leased to Tenant and Tenant
leased from Former Landlord, thirty-three thousand five hundred fourteen
(33,514) square feet of the floor space ("Initial Premises"), consisting of the
entire twelfth (12th) and thirteenth (13th) floors of the building ("Building")
having a street address of 255 Alhambra Circle, Coral Gables, Florida 53l34 and
commonly known as Alhambra International Center.
B. Landlord has acquired the fee simple title to the Alhambra
International Center from Former Landlord and is the assignee of the lessor's
interest in, to and under the Lease.
C. Tenant has requested that the Lease be modified to increase the
Initial Premises by an additional eight thousand five hundred ninety-seven
(8,597) rentable square feet ("Additional Space") and modify other provisions
of the Lease as necessary or desirable as a result of such increase in the size
of the Premises. The Landlord has agreed to so modify the Lease upon the terms
and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and Ten Dollars ($10.00) and other good and valuable
considerations passing between the parties, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. The foregoing Recitations are true and correct and incorporated
herein by reference.
2. All capitalized terms utilized herein shall have the meaning as set
forth in the Lease except as expressly otherwise provided herein.
3. The Additional Space is located on the Eleventh (11th) Floor of the
Building, known as Suite 1150, as shown cross hatched and identified on the
Floor Plan attached hereto as Exhibit "A-l" and made a part hereof. The
Additional Space shall be added to and become a part of the premises demised
under the Lease, and the Additional Space and Initial Premises are hereinafter
collectively referred to as the "Premises." The term "Premises" wherever used in
the Lease shall be deemed to include and refer to the Initial Premises and the
Additional Space. The provisions of the Lease that are affected by a change in
the size of the Premises are hereby deemed modified as appropriate, including,
without limitation, the following:
(a) Section 1.2 of the Lease is hereby modified to reflect that
the Rentable Area of the Premises is forty-two thousand one hundred eleven
(42,111) isquare feet of floor space, as calculated by Architectural Design
Collaborative, Inc., Architects, in accordance with the Building Owners' and
Managers' Association ("B0MA") Standard Method of Office Space Calculation using
a four (4%) percent common-area factor for the Initial Premises, as provided in
the Lease, and a fifteen (15%) percent common-area factor for the Additional
Premises.
(b) The lease commencement date for the additional space
("Additional Space Lease Commencement Date") shall be February 1, 1995,
<PAGE>
and the term of the Lease as to the entire Premises shall expire on the Lease
Expiration Date of April 30, 2004. If the Additional Space Tenant Improvement
Work to be performed by Landlord pursuant to Article 4 of this First
Modification is substantially complete and the Additional Space is ready for
occupancy prior to February 1, 1995, Landlord shall allow Tenant to occupy the
Additional Space at no charge until the Additional Space Lease Commencement
Date. If the Additional Space Tenant Improvement Work shall not be substantially
complete and the Additional Space ready for occupancy on February 1, 1995,
because of delay not caused by or attributable to Tenant, the Additional Space
Lease Commencement Date shall be delayed until the Additional Space Tenant
Improvement Work is completed and the Additional Space is ready for occupancy;
however, in such event the Lease Expiration Date shall remain April 30, 2004.
(c) Tenant shall pay Base Rent for the Additional Space monthly
installments in the amount of Twelve Thousand Five Hundred Thirty-Seven and
29/100 Dollars ($12,537.29) on February 1, 1995, and on the first day of each
month thereafter during the Initial Term of the Lease, subject to adjustment as
provided in the Lease as modified by this First Modification. The total monthly
Base Rent for the Premises as of February 1, 1995 shall be Fifty-One Thousand
Six Hundred Thirty-Six and 96/100 Dollars ($51,636.96).
(d) Tenant shall pay as Additional Rent for the Additional Space
Tenant's proportionate share of increases in Operating Expenses, as defined in
Section 3.4 of the Lease. Tenant's share of increases in Operating Expenses for
the Additional Space shall be 4.14%. The Additional Rent on the Additional Space
resulting from increases in the Basic Cost, as defined in said Section 3.4,
shall be paid by Tenant to Landlord in accordance with the provisions of said
Section 3.4, except that the Initial Basic Cost for the Additional Space shall
be defined as the Basic Cost for the calendar year 1995. Tenant's share of
increases in Operating Expenses for the entire Premises shall be the total
amount calculated for the Initial Premises as provided in the Lease and for the
Additional Space as provided in this First Modification, it being understood
that the Base Year for calculation of Tenant's share of increases in Operating
Expenses for the Initial Premises shall be 1994 and the Base Year for such
calculation for the Additional Space shall be 1995.
(e) Tenant shall pay any applicable sales, use, value added or
excise tax on all rents or other sums or amounts paid by Tenant to Landlord for
the entire Premises as provided in Section 3.6 of the Lease.
(f) On February 1, 1996 and annually thereafter on the first day
of February of each and every year during the Initial Term of the Lease, the
monthly Base Rent for the Additional Space shall be adjusted and increased (but
never decreased) to an amount equal to Twelve Thousand Five Hundred Thirty-Seven
and 29/100 Dollars ($12,537.29) ("Initial Base Rent for the Additional Space")
plus the sum obtained by multiplying the Initial Base Rent for the Additional
Space by the percentage of increase in the CPI (as defined in Section 3.3 of the
Lease) occurring between December 1994 and the month of December immediately
preceding the month of February in which the adjustment then being made is to be
effective. Landlord shall submit to Tenant a statement (no more frequently than
once in any twelve-month period) of the total increase in the CPI during the
applicable period for the adjustment of the monthly Base Rent for the Additional
Space, and the monthly installment of Base Rent for the Additional Space for the
succeeding twelve-month period commencing on each February 1 shall be adjusted
in accordance with said statement. If the monthly Base Rent [payable during any
such twelve-month period has not or cannot be computed by February 1 of any
year, Tenant shall continue to pay the monthly installments of Base Rent for the
Additional Space at the last then prevailing rate until the amount of the
adjusted monthly Base Rent for the Additional Space shall have been computed,
whereupon Tenant shall pay the deficiency, if any, between the monthly Base Rent
for the Additional Space actually paid and the new monthly Base Rent with the
payment of monthly Base Rent for the Additional Space next coming due.
<PAGE>
Notwithstanding anything to the contrary contained herein, Landlord and Tenant
agree that the CPI adjustment of monthly Base Rent for the Additional Space
shall not result in the monthly Base Rent for the Additional Space effective for
any twelve-month period commencing on February 1 of any year being greater than
105% of the monthly Base Rent for the Additional Space in effect for the
immediately preceding twelve-month period. The adjustment of Base Rent for the
Initial Premises shall be made as contemplated and provided by the Lease prior
to and notwithstanding this First Modification and the adjustment of monthly
Base Rent for the Additional Space shall be made as provided in this First
Modification, it being understood that said adjustments shall be separately
made.
(g) Section 21.1 of the Lease is hereby modified to provide that,
as of February 1, 1995, Tenant's allotment of Unassigned Parking spaces shall be
increased from fifty-six (56) spaces to seventy-six (76) spaces. Charges for the
twenty (20) additional Unassigned parking spaces shall be at Thirty ($30.00)
Dollars per month per space during the twelve (l2) month period commencing on
the Additional Space Lease Commencement Date, and thereafter at the then
prevailing monthly garage contract rate, subject to change from time to time,
provided that the applicable rate shall never exceed the prevailing monthly
garage contract rate in effect on the first date of change increased by five
(5%) percent per year, cumulatively, from said first date of change. Said
section is further modified to provide that Tenant's allotment of Reserved
Parking is increased, as of February 1, 1995, from eleven (11) spaces to
thirteen (13) spaces. The two (2) additional Reserved Parking spaces shall be
made available at Forty ($40.00) Dollars per month per space during the twelve
(12) month period commencing on the Additional Space Lease Commencement date,
and thereafter, at the then prevailing garage contract rate for Reserved
Parking, subject to change from time to time, provided that the applicable rate
shall never exceed the prevailing monthly garage contract rate for Reserved
Parking in effect on the first date of change increased by five (5%) percent per
year, cumulatively, from said first date of change. The location of such
Reserved Parking spaces shall be subject to redesignation from time to time, as
determined by Landlord, however, Landlord agrees that in the event of
redesignation, all reserved spaces shall be located on a floor or floors of the
garage which are directly connected to the Building by fly bridge walkway.
Notwithstanding the provisions hereof, the parking spaces, whether Unassigned
Parking or Reserved Parking, allocated to Tenant pursuant to Section 21.1 of the
Lease prior to this First Modification, shall continue to be allocated, governed
and charges therefor levied pursuant to Section 21.1 of the Lease without
reference to this First Modification. Except as otherwise provided in this First
Modification, the additional parking spaces allotted under this First
Modification shall be governed by the provisions of Article 21 of the Lease.
4. Landlord shall undertake and substantially complete, with reasonable
diligence, the Additional Space Tenant Improvement Work as described and
provided in the Workletter hereto attached as Exhibit "A-2" and expressly made a
part hereof. Landlord and Tenant agree that the Workletter hereto attached shall
govern and control the rights, responsibilities and obligations of the parties
with respect to the Tenant Improvement Work and that to the extent applicable,
Sections 2.4 and 2.5 shall apply with respect to completion of the work.
5. The provisions of Article 22 RENEWAL OPTIONS of the Lease shall
apply to the entire Premises and the exercise of either or both of the Renewal
Options in the manner provided in the Lease shall serve to extend and renew the
Lease, as hereby modified, as to the entire Premises in the manner and to the
effect stated in said Article 22. However, notwithstanding the provisions of
Section 22.3 of Article 22, Landlord shall have no obligation to provide Tenant
with a "Refurbishment Allowance" for the Additional Space, and the "Base Rent"
for the Additional Space shall, for the first Lease Year of each Renewal Term
and for each succeeding year of each Renewal Term, be equal to one hundred
(100%) percent of "Fair Market Rental Rate" prevailing at the commencement of
each Lease Year, determined in accordance with said Article 22. The
Refurbishment Allowance provider in said Section 22.3 shall continue to apply to
the Initial Premises and the provisions of said Section 22.3 with respect to
Base Rent shall continue to apply
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<PAGE>
to the Initial Premises as though this First Modification to Office Space Lease
Agreement had not been executed.
6. The provisions of Article 23 EXPANSION OPTION are hereby stricken
and deleted from the Lease and the Expansion Option granted in said Article 23
is hereby declared void and of no further force or effect. Tenant acknowledges
and agrees that it has no further right of expansion of the premises under this
Lease nor any option or right to lease or occupy any space other than the
Premises consisting of the Initial Premises and the Additional Space.
7. Tenant represents and warrants to Landlord that there is no broker
involved on its behalf or employed by it in connection with the leasing of the
Additional Space or the negotiation or consummation of this First Modification
and agrees to indemnify and hold Landlord harmless against any claim or
liability asserted by any broker claiming a commission or compensation on
account of this transaction as having represented Tenant or presented the
Additional Space to Tenant for leasing. Landlord represents and warrants to
Tenant that except for Fort Dallas Associates, Inc., there is no broker involved
on its behalf or employed by it in connection with the leasing of the Additional
Space to Tenant or the negotiation and consummation of this First Modification,
and agrees that all commission and compensation due to Fort Dallas Associates,
Inc. shall be paid solely by Landlord. Landlord agrees to indemnify and hold
Tenant harmless against any claim or liability asserted by any broker claiming a
commission or compensation on account of this transaction as having been
employed by or representing Landlord in this transaction.
8. The Lease, as modified by this First Modification, except as
hereinabove expressly otherwise provided, shall include and apply to the
Additional Space as well as the Initial Premises and the Lease is hereby
modified and amended as provided in this First Modification. The Lease, as
hereby modified and amended, shall continue in full force and effect.
9. RADON GAS NOTICE. Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. This notice is given pursuant to
404.056(7), Florida Statutes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Modification to Office Space Lease Agreement on or as of the day and year first
above written.
LANDLORD
Signed, sealed and delivered BLUMBERG/ALHAMBRA PARTNERS,
in the presence of: a Florida General Partnership
/s/ Agnes Arcia BY: AMERICAN VENTURES PROPERTY
- ------------------------------ FUND-I, LTD., a Florida Limited
(print name Agnes Aarcia ) Partnership, General Partner
----------------------
/s/ Esperanza Silvestre
- ------------------------------
(print name Esperanza Silvestre ) BY: AVRA-GPI, INC., a Florida Corporation,
---------------------- General Partner of American Ventures
Property Fund-I, Ltd.
(as to "Landlord")
BY: /s/ Philip Blumberg
------------------------------
-4-
<PAGE>
Philip Blumberg, President
BY: ALHAMBRA PROPERTY FUND, LTD,
a Florida Limited Partnership,
General Partner
BY: ALHAMBRA PROPERTY FUND GP,
INC., a Florida Corporation,
General Partner of Alhambra Property
Fund, Ltd.
BY: /s/ Philip Blumberg
------------------------------
Philip Blumberg, President
"TENANT"
Signed, sealed and delivered
in the presence of: SUNGLASS HUT INTERNATIONAL, INC.,
a Delaware Corporation
Signed, sealed and delivered
in the presence of:
/s/ Susana O. Meszaros
- --------------------------------
(print name Susana O. Meszaros
BY: /s/ JACK CHADSEY
------------------------------
JACK CHADSEY
/s/ [ILLEGIBLE]
- --------------------------------
(print name [ILLEGIBLE] Title: PRESIDENT, AND CEO
--------------------- ---------------------------
(AS TO "TENANT")
-5-
<PAGE>
Exhibit "A-1"
[GRAPHIC OMITTED]
FLOOR PLAN - ELEVENTH FLOOR
<PAGE>
EXHIBIT "A-2"
SECOND MODIFICATION OF LEASE AGREEMENT BETWEEN
BLUMBERG / ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASS HUT INTERNATIONAL, INC., AS TENANT
WORK LETTER - ADDITIONAL SPACE
Landlord and Tenant agree as follows:
1. PLANS. Landlord shall provide, at Tenant's expense, as part of
Tenant Improvement Allowance, those services of a licensed architect (the
"Architect Services"). The charge for such Architectural Services will be
reasonable and competitive when compared with those architectural services
provided in similar buildings located in Coral Gables, Florida. As part of the
Architect Services, Landlord's architect shall prepare a preliminary space plan
for the Additional Space which shall include partitions, door locations and
finish specifications desired by Tenant. Upon approval of the preliminary space
plan by both parties, which approval shall not be unreasonably withheld or
delayed, as part of the Architect Services, Landlord's architect shall prepare
Construction Documents (the "Construction Documents"), including partition and
door location drawings, telephone rough-in and electrical drawings, reflected
ceiling drawings and finish specifications required by Tenant and consistent
with the preliminary space plan. The Space Plan or Construction Documents and
any changes thereto are subject to Landlord approval. Tenant agrees to pay for
changes or alterations to the Space Plan or Construction Documents or any costs
incurred by the Architect Services due to Tenant's or Landlord's request.
2. SELECTION OF CONTRACTOR. Promptly following the completion and
Tenant approval of the Construction Documents, Landlord, shall prepare bid
packages and shall solicit bids for the construction of the Work (hereinafter
"Work") from Contractors approved by Landlord to perform work within the
Building (the "Approved Contractors"). Bids from the Approved Contractors shall
be delivered to the offices of Landlord. Landlord shall award the construction
contract for the Work to such bidder among the Approved Contractors as Landlord
deems appropriate in its sole discretion, however, Landlord shall not award the
construction contract to any contractor whose bid is more than five percent (5%)
greater than the lowest received bid unless otherwise specifically agreed by
Tenant.
3. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide a Tenant
Improvement Allowance (the "Allowance") of eighteen ($18.00) dollars per
rentable square foot of the Additional Space. Landlord shall first apply the
Allowance to the total cost of the Work, including Architectural Services. In
the event the cost of the Work exceeds the Allowance, prior to the commencement
of the Work, Tenant shall pay to the Landlord fifty percent (50%) of the
estimated cost of the Work in excess of the Allowance; fifty percent (50%) of
the estimated cost of the Work in excess of the Allowance shall be paid by the
Tenant to the Landlord upon substantial completion of the Work. All additional
costs attributable to change orders or modifications requested by Tenant, shall
be at Tenant's expense.
<PAGE>
The Allowance is to be used solely for the purposes specifically set
forth in this Workletter - including, drywall partitioning, doors (hardware and
frame), electrical work, plumbing, HVAC and related mechanical work, fire alarm
and sprinkler work, lighting, floor covering, millwork, built-in furniture and
other fixtures, Tenant's telephone system and computer wiring - and for no other
purpose unless otherwise agreed to in writing by the parties hereto. Landlord
shall deliver the Additional Space in "as-is" condition; however, Tenant shall
have the right to salvage, for the purpose of utilizing within the Additional
Space, existing materials - including, drywall partitions, HVAC supply/return
grills, duct work, VAV boxes, electrical wiring, doors and related hardware and
2' x 4' light fixtures. In the event Tenant elects to re-use the existing light
fixtures, such fixtures shall be refitted with energy efficient electric
ballasts, and T-8 fluorescent light bulbs, the cost of which shall be deducted
from the Allowance.
4. CONSTRUCTION OF TENANT IMPROVEMENTS. Except as provided in Paragraph
5 hereinafter, Landlord shall cause to be performed within the Additional Space,
substantially in accordance with the Construction Documents approved by Landlord
and Tenant, partitions, interior doors, lights, fixtures, acoustical ceiling,
floor covering, electrical outlets, telephone rough-ins, and other improvements
required by Tenant which are normally performed by the construction trade.
All Work (as defined in Paragraph 4 of this Workletter) will be
performed by a contractor selected by Landlord, subject to the conditions set
forth herein. All mechanical, structural, electrical, plumbing and fire
sprinkler engineering required for the Work will be performed by the Landlord's
engineers at Tenant's expense.
Subject to the provisions of the Lease and this Workletter, Landlord
shall proceed diligently to cause the Work to be substantially completed on or
before February 1, 1995, subject to events beyond Landlord's reasonable control,
including, without limitation, any of the items set forth in paragraph 8 of this
Workletter. Notwithstanding the foregoing, Landlord shall not be liable for
failure to substantially complete the Work on or before said date.
5. OTHER WORK BY TENANT. All work not within the scope of the normal
construction trades employed by the Landlord - such as, furniture, telephone
equipment and wiring and office equipment - shall be furnished and installed by
Tenant. Tenant shall adopt a schedule in conformance with the schedule of
Landlord's contractors and conduct its work in such manner as to maintain
harmonious labor relations and as not to unreasonably interfere with or delay
the work of Landlord's contractors. Tenant's contractors, subcontractors and
laborers shall be subject to the administrative supervision of Landlord's
general contractor. Contractors and subcontractors engaged by Tenant shall
employ sufficient personnel and means to insure so far as may be possible the
progress of the work without interruption on account of strikes, work stoppage
or similar causes for delay. Landlord shall give reasonable access and entry to
the Additional Space to Tenant and its contractors and subcontractors and
reasonable opportunity and time and reasonable use of available facilities so as
to enable Tenant to adapt the Additional Space for Tenant's use; provided,
however, that if such entry is prior to the commencement of the term of this
Lease, such entry shall be subject to all of the terms and conditions of the
Lease except the payment of rent.
6. SUBSTITUTE MATERIALS. Landlord reserves the right to substitute
materials, finishes, fixtures, equipment and the like for similar materials
(hereinafter "Materials"), etc. which are of equal quality.
7. COMPLETION-PUNCHLIST. When Landlord, in its sole discretion,
considers the Work to be substantially complete or about to be substantially
completed, Landlord shall notify Tenant as to the date or anticipated date of
substantial completion and of a time and date for inspection of the Work. Tenant
agrees to inspect the Additional Space at such time and on such date and to
execute at the time of such inspection Landlord's form of inspection report
which
<PAGE>
shall list items designated by Landlord as not yet completed and any additional
items which Landlord and Tenant reasonably agree upon such inspection are not
yet completed (said list is hereinafter referred to as the "Punchlist") If the
Punchlist consists only of items which shall not materially interfere with
Tenant's ability to use and occupy the Additional Space for their intended
purpose, Tenant agrees to also execute at the time of such inspection a written
statement that the Additional Space has been substantially completed in
accordance with this Workletter and the Lease subject only to the items listed
on the Punchlist. If Tenant does not appear for inspection on the date
designated or agreed upon, Tenant shall be deemed to have accepted the
Additional Space as substantially completed and Landlord or its representative
may execute the Punchlist on behalf of both Landlord and Tenant. Tenant agrees
that, at the request of Landlord from time to time after the initial inspection,
Tenant shall initial the Punchlist or execute revised Punchlists to reflect
partial completion of prior Punchlist items.
At any time after substantial completion of the Work or the Additional
Space Term Commencement Date, whichever occurs first, Landlord may enter the
Additional Space to complete Punchlist items.
8. DELAYS IN WORK. The following shall constitute Tenant Delays to
substantial completion of the Work:
(a) Tenant's delay of approving the space plan within three
(3) business days from receipt from Landlord, the Construction
Documents or any revision(s) thereto; or
(b) Tenant's delay in approving any pricing schedule or
revisions thereto within two (2) business days from receipt from
Landlord; or
(c) Landlord's inability to obtain any materials, finishes, or
installations, or complete any construction procedures specially
requested by Tenant as part of the Work on a timely basis; or
(d) Delay in commencement of any Work on account of Tenant's
failure to pay for any portion of the cost of the Work as and when
payable by Tenant hereunder; or
(e) Tenant's requested changes in Tenant Work, Space Plan or
Construction Documents; or
(f) Any other act, omission or delay by Tenant, its agents,
contractors or persons employed by any such persons which directly
delays the substantial completion of the Work
9. MISCELLANEOUS.
(a) The Work shall be done by Landlord, or its designees,
contractors or subcontractors, in accordance with the terms, conditions
and provisions herein contained.
(b) Except as expressly set forth herein or in the Lease,
Landlord has no other agreement with Tenant and has no separate
obligation to do any other work with respect to the additional space.
(c) Any person signing the Workletter on behalf of Landlord or
Tenant warrants and represents he or she has the authority to do so.
(d) This Workletter shall not be applicable to any additional
area added to the Additional Space at any time or from time to time,
whether by any options under the Lease or otherwise, or to any portion
of the original Premises or any additions thereto in the event of a
renewal or extension of the original Term of this Lease, whether by any
options under the Lease or otherwise, unless expressly so provided in
the Lease or any
<PAGE>
riders or supplement thereto.
(e) With respect to any amounts owed by Tenant hereunder and
not paid when due or Tenant's failure to perform its obligations
hereunder, Landlord shall have all of the rights and remedies granted
to Landlord under the Lease, as in the event of a default, for
non-payment by Tenant of any amounts owed thereunder or failure by
Tenant to perform its obligations thereunder.
Initials of:
[ILLEGIBLE]
- ----------------------------
Landlord
[ILLEGIBLE]
- ----------------------------
Tenant
<PAGE>
SECOND MODIFICATION TO OFFICE SPACE LEASE AGREEMENT
This Second Modification to Office Space Lease Agreement ("Second
Modification") is made and entered into as of the 30th day of July, 1996, by and
between BLUMBERG/ALHAMBRA PARTNERS ("Landlord"), successor in interest to The
Travelers Insurance Company ("Former Landlord") and SUNGLASS HUT INTERNATIONAL,
INC. ("Tenant").
BACKGROUND STATEMENT
A. Former Landlord and Tenant entered into that certain Office Space
Lease Agreement ("Original Lease") dated October 28,1993 whereby Former Landlord
leased to Tenant and Tenant leased from Former Landlord thirty three thousand
five hundred fourteen (33,514) square feet of the floor space ("Initial
Premises"), consisting of the entire twelfth (12th) and thirteenth (13th) floors
and amended by the First Modification to Office Space Lease Agreement dated
November 23, 1994 ("First Modification"), whereby Landlord leased to Tenant and
Tenant leased from Landlord certain Premises ("Additional Space") consisting of
eight thousand five hundred and ninety seven (8,597) rentable square feet
located on the eleventh (11th) floor of the building ("Building") having a
street address of 255 Alhambra Circle, Coral Gables, Florida 33134, commonly
known as Alhambra International Center. The Original Lease and the First
Modification are hereinafter collectively referred to as the "Lease".
B. Tenant has requested that the Term of the Lease for the Additional
Space be extended by two (2) years and three (3) months.
NOW THEREFORE, in consideration of the rent to be paid for the
Extended Lease Term the mutual covenants and conditions contained herein and Ten
Dollars ($10.00) and other good and valuable conditions, the receipt and
sufficiency is hereby acknowledged, Landlord and Tenant covenant and agree as
follows:
1. The matters stated on the background statement are true and correct
and incorporated herein by reference.
2. All capitalized terms utilized herein shall have the meaning as set
forth in the Lease and First Modification except as expressly otherwise provided
herein. In the event of any conflict between the terms of this Second
Modification, the terms of the Lease and this Second Modification shall
prevail.
(a) Term Extension - Landlord and Tenant agree to extend the Term
of the Lease for the Additional Space identified as Suite 1150 as depicted in
Exhibit "A". The term extension ("Term Extension") shall continue for a period
of two years and three months so that the new Lease Expiration Date shall be
July 31, 2006.
(b) Tenant represents and warrants to Landlord that there is no
broker involved on its behalf or employed by in connection with leasing of the
Additional Space or the negotiation or consummation of this Second Modification
and agrees to indemnify and hold Landlord harmless against any claim or
liability asserted by any broker claiming a commission or compensation on
account of this transaction as having represented Tenant or presented the
Additional Space to Tenant for leasing. Landlord represents and warrants to
Tenant that except for American Ventures Realty Corporation there is no broker
involved on its behalf or employed by it in connection with the leasing of the
Additional Space to Tenant or the negotiation and consummation of the Second
Modification, and agrees that all commission and compensation due American
Ventures Realty Corporation shall be paid solely by Landlord. Landlord agrees to
indemnify and hold Tenant harmless against any claim or liability asserted by
any broker claiming a commission or compensation on account of this transaction
as having been employed or representing Landlord in this transaction.
Page 1 of 2
<PAGE>
3. The Lease as modified by this Second Modification, except as
hereinabove expressly otherwise provided, shall include and apply to the
Additional Space and the Lease is hereby modified and amended as provided in
this Second Modification. The Lease, as hereby modified and amended shall
continue in full force and effect.
4. Radon Gas Notice - Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. This notice is given pursuant to
/section/ 404.056(7), Florida Statutes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second
Modification to Office Space Lease Agreement on or as of the day and year first
above written.
Signed, sealed and delivered in the
presence of:
LANDLORD:
Blumberg/Alhambra Partners, a Florida general
partnership
By: American Ventures Property Fund -1, Ltd.
a Florida limited partnership as General Partner
By: AVRA-GPI, Inc. a Florida corporation as
General Partner
/s/ Agnes Garcia By: /s/ Phillip F. Blumberg
- --------------------- --------------------------------
Phillip F. Blumberg, President
/s/ [ILLEGIBLE]
- ---------------------
TENANT:
Sunglass Hut International, Inc.
a Florida Corporation
/s/ [ILLEGIBLE] By: Jack B. Chadsey
- --------------------- --------------------------------
Jack B. Chadsey, President & CEO
/s/ Claudia Black
- ---------------------
Page 2 of 2
<PAGE>
[GRAPHIC OMITTED]
FLOOR PLAN - ELEVENTH FLOOR
<PAGE>
DISCLOSURE STATEMENT
RE: The sale/lease between AMERICAN VENTURES REALTY CORPORATION. as
Seller/Landlord and SUNGLASS HUT INTERNATIONAL, INC. as Purchaser/Tenant
of the premises identified as 255 ALHAMBRA CIRCLE, SUITE, MIAMI, Florida.
Pursuant to Ch. 475, Florida Statutes, and Rule 221V-10.033, Rules of the
Florida Real Estate Commission, American Ventures Realty Corporation
("AVRC") makes the following disclosures:
I. In the above transaction, AVRC represents:
[ ] (a) the Tenant/Purchaser only;
[X] (b) the Landlord/Seller only;
[ ] (c) the Subtenant and Sublandlord jointly and such dual agency is
expressly consented to by the parties by their execution hereof.
II. In the above transaction, AVRC shall receive its compensation from:
[ ] (a) the Tenant/Purchaser only;
[X] (b) the Landlord/Seller only; or
[ ] (c) both the Tenant/Purchaser and the Landlord/Seller and such
payment is expressly consented to by the parties by their
execution hereof
The parties named below acknowledge and agree to representations and
compensation disclosed above.
AMERICAN/VENTURES REALTY CORPORATION SUNGLASS HUT INTERNATIONAL, INC.
By: [ILLEGIBLE] By: /s/ JACK CHADSEY
--------------------------------- ---------------------------------
Title: PRESIDENT Title: PRESIDENT AND CEO
------------------------------ ------------------------------
Date: 8/8/96 Date: July 30, 1996
------------------------------ ------------------------------
<PAGE>
OFFICE SPACE LEASE AGREEMENT
Between
BLUMBERG / ALHAMBRA PARTNERS
----------------------------
As Landlord,
And
SUNGLASS HUT INTERNATIONAL, INC.
--------------------------------
As Tenant,
Dated
July 30, 1996
<PAGE>
OFFICE SPACE LEASE AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I THE PREMISES 1
Section 1.1 Demises 1
Section 1.2 Premises 1
Section 1.3 Nonexclusive Rights 1
Section 1.4 Landlord's Reserved Rights 1
ARTICLE II TERM 2
Section 2.1 Term 2
Section 2.2 Lease 2
ARTICLE III RENT 2
Section 3.1 Rent
Section 3.2 Base Rent 2
Section 3.3 Adjustment to Base Rent in Subsequent Lease Years 2
Section 3.4 Increase in Operating Costs 3
Section 3.5 Additional Rent 5
Section 3.6 Sales Tax 5
Section 3.7 Payment of Rent 6
Section 3.8 Past Due Rent 6
ARTICLE IV SECURITY DEPOSIT 6
Section 4.1 Security Deposit 6
Section 4.2 Transfer of Security Deposit 7
Section 4.3 Mortgages 7
Section 4.4 Third Party Claim on Security Deposit 7
ARTICLE V USE OF PREMISES 7
Section 5.1 Use 7
Section 5.2 Compliance with Laws 7
Section 5.3 Hazardous Materials and Sewage Prohibited 7
ARTICLE VI ASSIGNMENT AND SUBLETTING 8
Section 6.1 Prohibition 8
Section 6.2 Assignment in Bankruptcy 9
Section 6.3 Effect of Consent 9
ARTICLE VII TENANT'S MAINTENANCE AND REPAIRS 10
Section 7.1 Maintenance 10
Section 7.2 Repairs 10
ARTICLE VIII TENANT ALTERNATIONS 10
Section 8.1 Prohibition 10
Section 8.2 Indemnification, Removal 11
ARTICLE IX LANDLORD'S INTEREST NOT SUBJECT TO LIENS 11
Section 9.1 Liens, Generally 11
Section 9.2 Mechanics Liens 11
Section 9.3 Notices of Commencement 11
ARTICLE X KEYS, SIGNS, FURNISHINGS AND EQUIPMENT 11
Section 10.1 Keys 11
Section 10.2 Signs 11
Section 10.3 Prohibited Advertising 12
Section 10.4 Landlord's Signage Rights 12
Section 10.5 Removal of Signage 12
Section 10.6 Furnishings 12
<PAGE>
Section 10.7 Equipment 12
ARTICLE XI INSPECTION BY LANDLORD 12
ARTICLE XII INSURANCE 12
Section 12.1 Liability Insurance 12
Section 12.2 Property Insurance 13
Section 12.3 Other Insurance 13
Section 12.4 Requirements 13
Section 12.5 Failure to Procure Insurance 13
Section 12.6 Waiver of Subrogation 13
Section 12.7 Insurance by Landlord 13
Section 12.8 Increase in Landlord's Insurance Premium 13
Section 12.9 Blanket Policy 13
ARTICLE XIII SERVICE AND UTILITIES 14
Section 13.1 Services and Utilities 14
Section 13.2 Normal Hours 14
Section 13.3 Interruptions 14
Section 13.4 Energy Conservation Control 14
Section 13.5 Access 14
ARTICLE XIV LIABILITY OF LANDLORD, INDEMNIFICATION BY TENANT 15
Section 14.1 Liability of Landlord 15
Section 14.2 Indemnification of Landlord 15
Section 14.3 Notice of Claim or Suit 15
Section 14.4 Transfer of Office Complex 15
Section 14.5 No Offset Against Rent 16
Section 14.6 Limitation of Liability of Landlord 16
ARTICLE XV RULES AND REGULATIONS 16
ARTICLE XVI DAMAGE OR DESTRUCTION 16
Section 16.1 Damage or Destruction 16
Section 16.2 Limitation of Landlord's Obligation 16
Section 16.3 Waiver by Tenant 17
Section 16.4 Landlord's Termination Option 17
Section 16.5 Tenant's Termination Option 17
ARTICLE XVII CONDEMNATION 17
Section 17.1 Condemnation 17
Section 17.2 Award 17
ARTICLE XVIII DEFAULT BY TENANT 17
Section 18.1 Events of Default 17
Section 18.2 Remedies on Default 18
Section 18.3 Additional Remedies 19
Section 18.4 No Waiver 20
Section 18.5 Landlord May Cure Tenant's Default 20
Section 18.6 Landlord's Lien 20
ARTICLE XIX SUBORDINATION, ATTORNMENT AND QUIET ENJOYMENT 20
Section 19.1 Subordination 20
Section 19.2 Attornment 21
Section 19.3 Quiet Enjoyment 21
ARTICLE XX END OF TERM 21
Section 20.1 Surrender of Premises 21
Section 20.2 Holding Over 22
ARTICLE XXI PARKING 22
Section 21.1 Parking, Generally 22
Section 21.2 No Specified Spaces 22
Section 21.3 Parking Garage Rules 22
Section 21.4 Parking Garage Hours 22
Section 21.5 No Liability of Landlord 22
<PAGE>
ARTICLE XXII RELOCATION OF TENANT 22
Section 22.1 Relocation 22
Section 22.2 No Interference 23
Section 22.3 Acknowledge and Confirmation 23
Section 22.4 Expense of Relocation 23
Section 22.5 Notice to Tenant 23
ARTICLE XXIII GENERAL PROVISIONS 23
Section 23.1 Entire Agreement; Modification 23
Section 23.2 No Partnership 23
Section 23.3 Determination of Rentable Area 23
Section 23.4 Brokers 23
Section 23.5 Estoppel Certificates 23
Section 23.6 Waiver of Jury Trial 24
Section 23.7 Waiver of Right of Redemption 24
Section 23.8 Venue 24
Section 23.9 Notices 24
Section 23.10 Rules of Construction 24
Section 23.11 Successors and Assigns 24
Section 23.12 Waiver 24
Section 23.13 Costs and Attorneys' Fees 24
Section 23.14 Time of the Essence 24
Section 23.15 Governing Law 25
Section 23.16 No Recording 25
Section 23.17 Radon Gas Notification 25
Section 23.18 Effective Date 25
Section 23.19 Authority 25
ARTICLE XXIV RENEWAL OPTIONS 25
Section 24.1 Grant of Renewal Options 25
Section 24.2 Exercise of Renewal Options 25
Section 24.3 Terms of the Lease During Renewal Term (s) 25
Section 24.4 Fair Market Rental Rate 25
EXHIBITS
LIST OF EXHIBITS
- ----------------
EXHIBIT A Legal Description of Land
EXHIBIT B Floor Plan
EXHIBIT C Work Agreement and Allowances
EXHIBIT D First Amendment to Lease
EXHIBIT E Rules and Regulations
EXHIBIT F Tenant Estoppel Certificate
EXHIBIT G Non-Disclosure Agreement
</TABLE>
<PAGE>
OFFICE SPACE LEASE AGREEMENT
THIS OFFICE SPACE LEASE AGREMENT (this "Lease") is made as of this ____ day of
July, 1996 by and between Blumberg / Alhambra Partners, a Florida Genral
Partnership (hereinafter referred to as "Landlord"), and Sunglass Hut
International, Inc. a Florida corporation (hereinafter referred to as "Tenant").
RECITALS:
WHEREAS, Landlord is the record owner of fee simple title to that certain
improved parcel of real property located in the city of Coral Gables, Dade
County, Florida, more particularly and legally described on Exhibit "A" attached
hereto (the "Land"), upon which Landlord has developed an office building
("Building") and adjacent parking garage, together known as Alhambra
Internatinal Center ("Office Complex"), located at 255 Alhambra Circle, Coral
Gables, FL 33134; and
WHEREAS, Tenant desires to lease space in the Office Complex and Landlord is
willing to rent space in the Office Complex to Tenant, upon and subject to the
terms conditions, covenants and agreements set forth hereinbelow.
NOW, THEREFORE, for and in consideratin of the premises hereof, the parties
hereto, intending legally to be bound, hereby covenant, stipulate and agree as
follows:
ARTICLE I
THE PREMISES
1.1 DEMISE. Landlord does hereby demise, let and lease unto Tenant, and
Tenant does hereby hire, lease and take as Tenant from Landlord, for the term,
for the use and on those terms and conditions hereinafter specified in this
Lease the premises hereinafter defined and described in Section 1.2 of this
Lease.
1.2 PREMISES. The Premises shall consist of and include approximately
13,069 square feet of rentable floor space ("Rentable Area") consisting of 4.044
rentable square feel ("Ground Floor Area:-) on the gound floor and 9,025
rentable square feet ("Seventh Floor Space") on the seventh (7th) floor of the
building. The Ground Floor Space and the Seventh Floor Space are sometimes
hereinafter collectively and severally referred to herein as the "Premises". The
location and configuration of the Premises are outlined on the floor plan
attached hereto as Exhibit "B" and made a part hereof. The building has a total
of 207,606 square feet of rentable area. THE FOREGOING RENTABLE AREA FIGURES
(FOR THE PREMISES AND THE BUILDING) HAVE BEEN CALCULATED IN ACCORDANCE WITH THE
BUILDING STANDARD METHOD OF OFFICE SPACE USING A MULTI-TENANT FLOOR CALCULATION
OF FIFTEEN (15%) PERCENT FOR THE (1ST) AND SEVENTH (7TH) FLOOR OFFICE SPACE. The
Rentable Area shall be subject to adjustment when the "Plans" (as defined in
Exhibit "C") are approved (as provided in Exhibit "C"), as calculated by
Landlord's architect. The parties agree that such figures, as so determined, are
hereby stipulated and agreed to for all purposes of this Lease unless the Plans
are modified or the Premises expanded as hereinafter provided. Landlord and
Tenant shall execute as amendment to this Lease more particularly described in
Exhibit "D" of this Lease, stating, among other things, the exact number of
square feet of Rentable Area included in the Premises.
1.3 NONEXCLUSIVE RIGHTS. The lease of the Premises includes the
nonexclusive right, together with other tenants of the Office Complex and
members of the public, to use the common and public areas of the Office Complex
for purposes of ingress and egress, but includes no other rights not
specifically set forth herein.
1.4 LANDLORD'S RESERVED RIGHTS. Landlord hereby reserves to itself and
its successors and assigns the right (i) to change from time to time the street
address and/or name of the Office Complex and/or the arrangement and/or location
of entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets, or other public portions of the Office Complex (so long as Landlord
shall provide elevator access and reasonable ingress and egress to and from the
premises; (ii) to own, install, erect, use, maintain and repair and replace
pipes and conduits in and through the Premises and in such event, landlord shall
use reasonable efforts to minimize disturbance to Tenant and not to materially
adversely affect Tenant's occupancy or use; and (iii) to grant to any other
person or entity the exclusive right to conduct any particular business or
undertaking in the Office Complex provided however, that Tenant shall not be
precluded from using the premises for the use granted in this Lease. Tenant
hereby consents and agrees to the foregoing and further agrees and acknowledges
that Landlord may exercise any or all of the foregoing rights without being
deemed guilty of an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or of Tenant's use or ocupancy of the
Premises recognizing, however, that with respect to exercising rights hereunder,
landlord will use reasonable efforts to minimize disturbance to Tenant.
Notwithstanding any of the foregoing to the contrary, "Tenant's Share" (as
hereinafter defined_ shall never increase due to landlord's exercise of rights
under this Section 1.4.
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ARTICLE II
TERM
2.1 TERM. The term of this Lease ("Lease Term") shall commence at 12:01
a.m. on august 1, 1996 the "Lease Commencement Date", and shall continue unless
earlier terminated in accordance with the provisions of this Lease, for a period
of ten (10) years thereafter and shall cease, terminate and expire at 11:59 p.m.
on July 31, 2006 (the "Lease Expiration Date"). Tenant and landlord acknowledge
and agree that this Lease is binding upon them as of the date of its execution
by Tenant and Landlord.
2.2 LEASE YEAR. For purposes of this Lease, the term "Lease Year" shall
mean each consecutive period of twelve (12) calendar months, commencing on the
first day of the calendar month in which the Lease Commencement Date occurs and
each anniversary of such day.
ARTICLE III
RENT
3.1 RENT. Tenant shall pay as rent for the Premises the amount set
forth in this Article III (each of which shall be considered rent and all of
which are, unless specifically stated otherwise, collectively referred to herein
as "Rent").
3.2 BASE RENT. Tenant shall pay as base rent ("Base Rent") equal to
approximately $21.42 per square foot of Rentable Area the sum of which is equal
to two hundred seventy nine thousand eight hundred ninety eight and 56/100
DOLLARS ($ 279,898.56) annually, payable in equal monthly installments, in
advance, of twenty three thousand three hundred twenty four and 88/100 DOLLARS
($ 23,324.88) together with all applicable sales taxes thereon. The first
payment of Base Rent shall be made upon the signing of this Lease by Tenant, and
the second and subsequent monthly payments shall be made on the first day of
each and every calendar month (beginning with the second calendar month) during
the lease Term. The monthly installments of Base Rent set forth above are
subject to adjustment upon determination of Rentable Area of Premises as set
forth in Section 1.2 hereof. In consideration of Tenant performing and paying
for all Tenant Improvement Work necessary to occupy the Premises, Landlord shall
abate Base Rental amounts in accordance with the following schedule:
MONTH/YEAR ABATEMENT AMOUNT
---------- ----------------
January, 1997 $23,3324.88
July, 1997 $23,3324.88
September, 1997 $23,3324.88
November, 1997 $23,3324.88
July, 1998 $23,3324.88
October, 1998 $23,3324.88
January, 1999 $23,3324.88
July, 1999 $23,3324.88
October, 1999 $23,3324.88
January, 2000 $23,3324.88
April. 2000 $23,3324.88
June, 2000 $8,527.20
3.3 ADJUSTMENT TO BASE RENT IN SUBSEQUENT LEASE YEARS. Commencing on
the first day of the second Lease Year and continuing annually on the first day
of each and every Lease Year thereafter during the Lease Term, the Base Rent
shall be adjusted and increased (but never decreased) to an amount equal to the
Base Rent for the immediately preceding Lease year plus the sum obtained by
multiplying such Base Rent for the immediately preceding Lease year by the
percentage increase in the CPI (as hereinafter defined) occurring between the
month in which the Lease Commencement Date occurs and the month immediately
preceding the first month of such new Lease Year. Landlord shall submit to
Tenant a statement (no more frequently than once in any 12-month period) of the
total increase in the CPI during the applicable period, and the monthly
installment of Base Rent for the succeeding Lease Year shall be adjusted in
accordance with said statement. The CPI is herein defined as the United States
Bureau of labor Statistics, Consumer Price index, All Urban Consumer 1982-84
Base (i.e. 1982-84 = 100), all Items, [SMSA], as published by the Bureau of
labor Statistics of the United States Department of Labor, or if such index is
discontinued, its successor, or if no successor is designated, any other similar
index acceptable to Landlord and Tenant. If the annual amount of Base Rent
payable during any lease Year has not or cannot be computed by the due date of
the first or any subsequent installment of Base Rent for the new Lease Year,
Tenant shall continue to pay monthly installments of Base Rent at the rate
established for the immediately preceding Lease year until the amount of the
adjusted Base Rent for the new Lease Year and the monthly installments thereof
have been computed, whereupon Tenant shall pay the deficiency, if any, between
the monthly installments actually paid and the new installments with the monthly
installment of Base Rent next coming due. SUCH ANNUAL INCREASES IN BASE RENT
RESULTING FROM SAID CONSUMER PRICE INDEX (CPI) ADJUSTMENT SHALL NOT EXCEED FIVE
(5%) PERCENT PER ANNUM ON A CUMULATIVE BASIS.
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3.4 INCREASE IN OPERATING COSTS. In addition to each monthly
installment of Base Rent Tenant shall pay to Landlord as Additional Rent six
point two nine five percent (6.295%) (being the approximate and agreed upon
proportion which the floor area of the Premises bears to the total rentable
office area of the Office Complex and being herein referred to as the "Tenant's
Proportionate Share") of the amount in excess of the Basic cost (hereinafter
defined) during each calendar year of the Lease Term. All payments under this
Section 3.4 shall be deemed and considered to be Additional Rent as defined in
Section 3.5 hereof.
For the purposes hereof, the term "Basic Cost" as used herein shall mean all
Operating Expenses (as hereinafter defined) of the Office Complex, which shall
be computed on the accrual basis or as otherwise required by generally accepted
accounting principles ("GAAP") consistently applied in its reasonable business
judgment and in accordance with GAAP and shall consist of all expenditures
determined by Landlord in its reasonable business judgment and in accordance
with GAAP to be necessary in the ownership, management, operation and
maintenance of the Office Complex. The term "Operating Expenses" as used herein
shall means all expenses, costs and disbursements (but not replacement of
capital investment items or specific costs especially billed to and paid by
specific tenants) of every kind and nature, which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, management,
operation and maintenance of the Office Complex, including, but not limited to,
the following:
(a) All general and special real estate taxes, special assessment, and
other ad valorem taxes, rates, levies and assessments payable in respect of such
year by Landlord upon or with respect to the Office Complex or the land by any
governmental or quasi-governmental authority and all taxes specifically imposed
in lieu of any such taxes, which taxes shall be included utilizing any discounts
or reductions in taxes actually received by Landlord.
(b) All wages and salaries of all employees engaged in managing
operating and maintenance or security of the Office Complex, including taxes,
insurance and benefits relating thereto, PROVIDED THAT SUCH WAGES AND SALARIES,
INCLUDING TAXES, INSURANCE AND BENEFITS, OF EMPLOYEES ENGAGED IN MANAGING,
OPERATING, MAINTENANCE OR SECURITY WHO ARE NOT FULL-TIME EMPLOYEES OF THE OFFICE
COMPLEX SHALL BE FAIRLY AND EQUITABLY ALLOCATED TO THE OFFICE COMPLEX TO REFLECT
RATABLY THE TIME OF SUCH EMPLOYEES ACTUALLY DEVOTED TO THE OFFICE COMPLEX.
(c) The cost of all supplies and materials used in management,
operation and maintenance of the Office Complex.
(d) All costs (including surcharges) of all utilities for the Office
Complex, including without limitation water, sewer, electric power, heating,
lighting, air conditioning and ventilating.
(e) All costs of all maintenance and service agreements for the Office
Complex and the equipment therein, including without limitation on security and
energy management services, window cleaning, elevator maintenance and janitorial
service.
(f) All costs of all insurance relating to the Office Complex,
including casualty and liability insurance applicable to the Office Complex and
Landlord's personal property used in connection therewith.
(g) All costs of repairs and general maintenance of the Office Complex
(excluding repairs and general maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations attributable solely to Tenants of
the Office Complex other than Tenant).
(h) Reasonable fees and reimbursable costs and expenses for the manager
of the Office Complex.
(i) All costs of professional services or fees involved in any contest
of any taxes or assessments with respect to the office Complex or the Land,
including legal and accounting services.
(j) All costs of any additional services not provided to the Office
Complex at the Lease Commencement Date but thereafter provided by Landlord in
the prudent management of the Office Complex.
(k) All costs of any capital improvements made to the Office Complex,
which in Landlord's reasonable discretion and in good faith are intended to
improve operating efficiency, amortized over the useful life as determined by
GAAP, together with interest on the unamortized balance at the rate of ten
percent (10%) per annum or such higher rate as may have been paid by Landlord on
funds borrowed for the purposes of constructing said capital improvements.
Notwithstanding the foregoing, the following costs and expenses shall be
excluded from Operating Expenses:
(a) expense directly relating to the leasing of space in the Building
(including Tenant improvements and painting, decorating, Landlord construction
allowances or contributions, leasing
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commissions, rental concessions, and advertising expenses incurred in connection
with the listing of available space for lease in the Building);
(b) legal fees and disbursements incurred for negotiation of leases or
enforcement of leases;
(c) the cost of electricity for any space available for occupancy or
occupied by Tenants in the Building to the extent paid for directly by such
Tenants and not paid by such Tenants as a part of their share of Operating
Expenses;
(d) expenditures for financing and refinancing and for mortgage debt
service or any other cost incurred in respect of any mortgage or other financing
of the Building or Land;
(e) franchise, transfer, gains, inheritance, estate, mortgage recording
and income taxes imposed upon Landlord;
(f) costs for which Landlord receives a credit against any payment due
from Landlord to Tenant or any third party costs and expenses otherwise
includable in Operating Expenses, to the extent that Landlord is actually
reimbursed from other sources for such costs and expenses;
(g) rent and additional rent payable under a ground lease or any other
superior lease affecting the Building;
(h) costs to the extent for which Landlord actually receives insurance
proceeds;
(i) costs incurred in connection with a sale of all or a portion of the
Building or the sale or transfer of any beneficial ownership interest in and to
Landlord and/or the Building or the grant of a ground lease or any other
superior lease affecting the Building;
(j) any fee or expenditure paid to a related party in excess of the
amount which would be paid in the arm's length transaction for materials or
services of comparable quality (but only to the extent of such excess);
(k) the cost of installing and maintaining any specialty facility, such
as an observatory, broadcasting facility, luncheon club, athletic or
recreational club, cafeteria or dining facility unless (a) such facility is
available to all Tenants of the Building (and their employees, guests and
invitees), but not to the public in general or (b) with respect to the
maintaining of such facility, the Tenant of such facility is obligated to pay
its proportionate share of Operating Expenses;
(l) any interest or penalty charges incurred by Landlord due to
Landlord's violation of any law;
(m) costs for sculptures, paintings and other objects of art located
within or outside the Building, other than the costs of maintaining such objects
in the public areas of the Building;
(n) salaries or fringe benefits of personnel not employed exclusively
at the Building, to the extent such salaries and benefits relate to work related
to property not part of the Office Complex, as determined on a pro rata basis;
(o) any expense fully reimbursed to Landlord by Tenant or any other
Tenant of the Building, or any expense billed to and paid directly by same for
their own account or on Landlord's behalf and not paid as a part of such
Tenant's share of Operating Expenses;
(p) financing and refinancing costs in respect of any indebtedness of
Landlord, whether secured or unsecured, including legal and accounting fees and
expenses, prepayment penalties, and interest and amortization payments;
(q) advertising and promotional expenditures, and costs of signs in or
on the Building identifying Landlord or any specific Tenant of the Building;
(r) any bad debt rent loss or reserved for bad debts or rent loss;
(s) costs incurred by Landlord for repairs or replacements to the
extent that Landlord is actually reimbursed under warranties or guarantees;
(t) all costs of correcting structural defects, including any
allowances for same, in the construction of the Building (including latent
defects); and
(u) all fines, penalties and legal fees incurred due to any violation
by Landlord, its employees, agents or contractors of any applicable building
code, governmental rule, regulation, or law.
The "Initial Basic Cost" shall be defined as the Basic Cost for the Calendar
Year 1996.
Prior to January 1 of each calendar during the Lease Term after the calendar
year which includes the Lease Commencement Date, Landlord shall provide to
Tenant a comparison of the Initial Basic Cost and
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the projected Basic Cost for such upcoming calendar year, together with a
statement of the projected excess of the Basic Cost over the Initial Basic Cost.
During each month of the following calendar year, Tenant shall pay to Landlord,
in advance and simultaneously with each monthly installment of Base Rent, one
twelfth (1/12) of Tenant's Proportionate Share of any projected excess of the
Basic Cost over the Initial Basic Cost for such calendar year. Landlord shall,
within ninety (90) days (or as soon thereafter as possible) after the close of
each calendar year following the calendar year of the Lease Commencement Date,
provide Tenant a statement ("Basic Cost Notice") of such year's actual Basic
Cost showing the actual excess of the Basic Cost over the Initial Basic Cost. If
such statement shows that Tenant's monthly payments pursuant to this Section
exceeded Tenant's share of the actual increase incurred for the preceding
calendar year, then Landlord shall promptly refund such excess to Tenant. If
such statement shows that Tenant's share of the actual increase in the Basic
Cost exceeded the monthly payments from Tenant pursuant to this Section for the
preceding calendar year, then Tenant shall within thirty (30) days after receipt
of such statement pay the total amount of such deficiency to Landlord.
Notwithstanding the foregoing, if Landlord fails to give the Basic Cost Notice
within eighteen (18) months after the expiration of an applicable calendar year,
then Landlord will be deemed to have waived the right to an adjustment for the
applicable calendar year. The failure of Landlord to give the Basic Cost Notice
will not be a waiver of Tenant's right to receive a refund for any overpayment
made for the applicable time period.
In addition, during the Lease Term, but not more than one (1) time per year, and
provided this Lease is in full force and effect, Tenant, at its sole cost and
expense, including cost incurred by Landlord in making books and records
available to Tenant and consulting with Tenant with respect thereto (subject to
the penultimate sentence of this paragraph), shall have the right to cause
Landlord's books and records with respect to Operating Expenses to be reviewed
by Tenant, which review may include an audit by an independent certified public
accountant. Landlord shall cause such books and records to be made available for
such inspection during normal business hours at the Building Management Office,
upon ten (10) business days prior notification to Landlord. Such review and/or
audit shall be done in accordance with the GAAP. (Landlord will maintain its
books and records for each calendar year for twenty-four (24) months following
the expiration of the calendar year to which such books and records relate).
However, if Tenant fails to notify Landlord that it disputed the applicable bill
within one hundred twenty (120) days after Tenant's receipt thereof, then Tenant
will be deemed to have waived its right to contest such billing. If, at the
conclusion of such review and/or audit, Tenant's review and/or audit of such
expenses for the preceding year indicates that Tenant made an overpayment to
Landlord for such preceding year (and Landlord agrees with the results of
Tenant's accountant), Landlord shall remit the amount of such overpayment to
Tenant within thirty (30) days after receipt of notice from Tenant of the amount
of such overpayment. If, at the conclusion of such review and/or audit, such
agreed-upon review and/or audit reveals an underpayment by Tenant, Tenant will
remit the amount of such underpayment within thirty (30) days of Tenant becoming
aware of such underpayment. Should Landlord disagree with the results of
Tenant's review and/or audit, Landlord and Tenant shall refer the matter to a
mutually acceptable independent certified public accountant, who shall work in
good faith with Landlord and Tenant to resolve the discrepancy. The fees and
costs of such independent account to which such dispute is referred shall be
borne by the unsuccessful party and shall be shared pro rata to the extent each
party is unsuccessful as determined by such independent certified public
accountant, whose decision shall be final and binding. Landlord, at Tenant's
request and expense, will prepare summaries of Operating Expense components for
Tenant.
Should this Lease Agreement commence at any time other than the first day of a
calendar year, the payment of Tenant's Proportionate Share under this Section
shall be prorated and adjusted for such commencement year on a proportionate
daily basis (assuming a 365 day calendar year).
Tenant's obligation to make the payments under this Section as Additional Rent
shall survive any termination of this Lease by lapse of time or otherwise for a
period of one (1) year and thereafter if Landlord makes a claim for any amounts
owed by Tenant within such one (1) year period.
3.5 ADDITIONAL RENT. If Landlord shall make any expenditure for which
Tenant is responsible or liable under this Lease, or if Tenant shall become
obligated to Landlord under this Lease for any sum other than Base Rent,
including without limitation, Tenant's Proportionate Share of increased Basic
Cost, as set forth in Section 3.4 of this Lease, the amount thereof shall be
deemed to constitute additional rent ("Additional Rent") and shall be due and
payable by Tenant to Landlord, together with all applicable sales taxes thereon,
if any simultaneously with the next succeeding monthly installment of base Rent
or at such other time as may be expressly provided in this Lease for the payment
of the same.
3.6 SALES TAX. In addition to the Base Rent, Additional Rent and any
other sums or amounts required to be paid by Tenant to Landlord pursuant to the
provisions of this Lease, Tenant shall also pay to Landlord, simultaneously with
such payment of such rents or other sums or amounts, the amount of any
applicable sales, use or excise tax on any such rents or other sums or amounts
so paid by Tenant to Landlord, whether the same be levied, imposed or assessed
by the State of Florida or any other federal, state, county or municipal
governmental entity or agency. Any such sales, use or excise taxes shall be paid
by Tenant to Landlord at the same time that each of the Base Rent, Additional
Rent or any other sum or amount with respect to which such taxes are payable are
paid by Tenant to Landlord. In the event that any business, rent or other taxes
that are now or hereafter levied upon Tenant's use or occupancy of the premises
are enacted, changed or altered so that any of such taxes are levied against
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Landlord, or the mode of collection of such taxes is changed so that Landlord is
responsible for collection or payment of such taxes, Tenant shall pay any all
such taxes to Landlord within ten (10) days after written demand from Landlord
as Additional Rent. Nothing contained in this Lease shall be construed to
require Tenant to pay any income tax or franchise tax or any other taxes imposed
upon or measured by Landlord's net income or profits (other than sales, use,
value added or excise tax or tax in lieu thereof).
3.7 PAYMENT OF RENT. Each of the foregoing amounts of rent and other
sums shall be paid to Landlord on the first (1st) day of every month during the
Lease Term without demand and without deduction, set-off, claim or counterclaim
of any nature whatsoever which Tenant may have or allege to have against
Landlord, except for abatement of Rent as expressly provided herein, and all
such payments shall, upon receipt by Landlord, be and remain the sole and
absolute property of Landlord, except for abatement of Rent as expressly
provided herein. All such rents and other sums shall be paid to Landlord in
legal tender of the United States at the address to which notices to Landlord
are to be given or to such other party or to such other address as Landlord may
designate from time to time by written notice to Tenant. If Landlord shall at
any time accept any such rents or other sums after the same shall become due and
payable, such acceptance shall not excuse a delay upon subsequent occasions, or
constitute or be construed as a waiver of any of Landlord's rights hereunder.
3.8 PAST DUE RENT. If Tenant fails to make any payment of Base Rent,
Additional Rent or any other sums or amounts to be paid by Tenant hereunder on
or after the date such payment is due and payable, AND SUCH FAILURE CONTINUES
FOR TEN (10) DAYS AFTER WRITTEN NOTICE FROM LANDLORD, Tenant shall pay to
Landlord an administrative late charge of five percent (5%) of the amount of
such payment. In addition, IF SUCH FAILURE CONTINUES FOR TEN (10) DAYS AFTER
WRITTEN NOTICE FROM LANDLORD, Tenant shall pay to Landlord an administrative
late charge of five percent (5%) of the amount of such payment. In addition, if
such failure continues for ten (10) days after written notice from Landlord,
such past due payment shall bear interest at the maximum interest rate then
allowable under the laws of the State of Florida from the date such payment
became due to the date of payment thereof by Tenant. Such late charge and
interest shall constitute Additional Rent due and payable hereunder with the
next installment of Base Rent due hereunder.
ARTICLE IV
SECURITY DEPOSIT
4.1 SECURITY DEPOSIT. Simultaneous with the expiration of the Letter of
Credit currently on deposit with Landlord as required under Article 4 of the
Lease dated October 28, 1993 by and between Landlord and Tenant for space leased
on the Eleventh (11th), twelfth (12th) and Penthouse floor at Alhambra
International Center ("Original Lease") Tenant shall deliver to Landlord an
irrevocable letter of credit ("LC") in favor of Landlord in the principal amount
of three hundred thousand and 00/100 ($300,000.00) Dollars, as a security
deposit (the "Security Deposit"), as security for the faithful performance by
Tenant of all of Tenant's obligations, covenants, conditions and agreements
under this Lease and the Original lease. The LC shall: (a) be irrevocable,
unconditional and transferable; (b) be issued by a banking institution
reasonably acceptable to Landlord; (c) be in the amount of $300,000.00; (d) have
an expiration date no earlier than one (1) year after issuance, with an
automatic yearly renewal expiring no earlier than July 31, 2006, with
Landlord/beneficiary to receive thirty (30) days prior written notice of
expiration or cancellation; (3) provide that it may be drawn by presentation to
the issuer of: (i) a sight draft in the appropriate amount identifying the LC,
and (ii) a statement signed by Landlord certifying that the amount of the draft
is due under the terms of this lease and that either (1) such amount remains
unpaid beyond the applicable notice and cure period, if any, set forth in this
Lease, or (2) an acceptable replacement LC was not delivered to Landlord at
least fifteen (15) days prior to the expiration of the then existing LC (unless
the expiration of the then existing LC is thirty (30) full calendar months after
the Commencement Date); (f) provide that it may be drawn upon if the LC will be
canceled or will expire prior to the one hundred twentieth (120th) month of the
Lease Term and; (g) provide that at Landlord's option, partial withdrawal may be
made and, at the option and request of Landlord a replacement LC reflecting the
new principal amount of the same after a partial withdrawal shall be issued and
delivered to Landlord. No other requirements shall be imposed as a condition of
drawing the funds under the LC. Further, the LC shall be accompanied by a
certified copy of the resolution of the issuer naming the officer(s) executing
the same was fully empowered to execute the LC and to bind the issuer thereby
and that said resolution continues to be in full force and effect.
It is agreed: that Landlord's option exercisable by written notice, in
the event of a default (beyond any applicable notice and cure periods, if any,
set forth herein) by Tenant under any of the terms or provisions of this Lease,
draw upon the LC to the extent of the amount then owed by Tenant (provided a
replacement LC or acknowledgement of the balance of the LC) is delivered to
Landlord and apply the proceeds of the LC or any part thereof towards the
payment of the Rents and all other sums then due under this Lease, and towards
the performance of each and every one of Tenant's obligations then required to
be performed under this Lease, but such obligations and Tenant's liability under
this Lease shall thereby be discharged only to the extent of the sums so applied
by Landlord, and Tenant shall remain liable for any amounts that such sum shall
be insufficient to pay; that Landlord may exhaust any and all rights and
remedies against Tenant before resorting to said sum, but nothing herein
contained shall require or be deemed to require Landlord to do so except for any
applicable notice and cure rights, if any; that, in the event the proceeds of
the LC shall not be utilized for any such purposes, then (provided Tenant is not
in default hereunder and no sums are due hereunder
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which remain unpaid) the same shall be returned by Landlord to Tenant within ten
(10) days next after the expiration of the LC. If Landlord transfers its
interest in the Premises or this Lease, Landlord shall assign Landlord's
interest in the LC (and/or the proceeds thereof) to such transferee, and
thereupon, so long as the transferee assumes, in writing, Landlord's obligations
regarding the LC accruing from and after the transfer, Landlord shall be
discharged from (and have no) liability with respect to the LC (or the proceeds
thereof) including, without limitation, for the return thereof.
4.2 TRANSFER OF SECURITY DEPOSIT. In the event of the sale or transfer
of Landlord's interest in the Premises or the Office Complex, Landlord shall
have the right to transfer the Security Deposit to the purchaser or assignee, in
which event Tenant shall look only to the purchaser or assignee, as the new
Landlord, for the return of the Security Deposit, so long as the transferee
assumes, in writing, Landlord's obligations regarding the LC accruing from and
after the transfer, and Landlord hereunder shall thereupon be released and
discharged from all liability to Tenant for the return of the Security Deposit.
4.3 MORTGAGEE. Tenant hereby acknowledges that Tenant will not look to
the holder of any mortgage encumbering the Office Complex (or any part thereof
or interest therein) for return of the Security Deposit if such holder, or its
successors or assigns, shall succeed to the ownership of the Office Complex,
whether by foreclosure or deed in lieu thereof, except if Landlord and mortgagee
are related entities or if and to the extent the Security Deposit is actually
transferred to and accepted by such mortgage holder.
4.4 THIRD PARTY CLAIMS ON SECURITY DEPOSIT. In the event of bankruptcy
or other creditor debt proceedings against Tenant which result in a third party
claim on the Security Deposit, the Security Deposit shall be deemed to be first
applied to the payment of rents and other sums due Landlord for all periods
prior to the filing of such proceedings.
ARTICLE V
USE OF PREMISES
5.1 USE. Tenant shall throughout the Term of this Lease, use and occupy
the Premises solely for general office use purposes and for no other use or
purpose whatsoever without the prior written consent of Landlord, it being
expressly agreed that Tenant or any sublessee or assignee of Tenant shall not
convert the Ground Floor Space into a retail use of any kind or modify the
design of the Premises in such a way as to alter the existing appearance of the
ground floor public areas including store fronts, corridors and lobby areas.
Tenant shall not use or occupy the Premises for any unlawful purposes or in any
manner that will constitute waste, nuisance or unreasonable annoyance to the
Landlord or other Tenants of the Office Complex.
5.2 COMPLIANCE WITH LAWS. TO THE EXTENT THAT SAME BECOME EFFECTIVE
SUBSEQUENT TO TENANT'S TAKING POSSESSION OF THE PREMISES, Tenant shall comply
with all applicable laws, ordinances (including zoning ordinances and land use
requirements), rules, regulations, and orders of all federal, state, county and
municipal governments and any other public or quasi-public authority have
jurisdiction over the Premises or the business activities conducted therein,
including particularly but without limitation, those concerning the use,
occupancy and condition of the Premises and all machinery, equipment and
furnishings located therein, and of any insurance underwriting board or
insurance inspection bureau having or claiming jurisdiction or any other body
exercising similar functions and of all insurance companies from time to time
selected by Landlord to write policies of insurance covering the Office Complex
and any business activity conducted therein or therefrom. It is expressly
understood that if any present or future law, ordinance, regulation or order
requires an occupancy permit for the Premises, Tenant will obtain such permit at
Tenant's own expense.
5.3 HAZARDOUS MATERIALS AND SEWAGE PROHIBITED. Tenant shall at all
times during the term of this Lease keep the premises free of Hazardous
Materials (as hereinafter defined), and neither Tenant nor any of its employees,
agents, invitees, licensees, contractors or subtenants (if permitted) shall use,
generate, manufacture, refine, treat, process, produce, store, deposit, handle,
transport, release, or dispose of Hazardous Materials in, on or about the
Premises, Office Complex or Land, or the groundwater thereof, in violation of
any federal, state or municipal law, decision, statute, rule, ordinance or
regulation currently in existence or hereafter enacted or rendered. Tenant shall
give Landlord prompt written notice of any claim received by Tenant from any
person, entity, or governmental agency that a release or disposal of Hazardous
Materials has occurred on the Premises, Office Complex or Land. As used herein,
the term "Hazardous Materials" shall mean and be defined as any and all toxic or
hazardous substances, chemicals, materials or pollutants, of any kind or nature,
which are regulated, governed, restricted or prohibited by any federal, state or
local law, decision, statute, rule, or ordinance currently in existence of
hereafter enacted or rendered, except for materials used in the ordinary course
of business, such as office cleaning supplies, copy machine fluid and the like,
provided that same are maintained in accordance with all applicable laws.
Landlord hereby represents to Tenant that as of the date hereof, it is not aware
of any Hazardous Materials located in the Premises or the common areas of the
Building to be utilized by the Tenant in violation of applicable law with
respect to which Landlord has actual knowledge that it is required to remediate
pursuant to applicable law.
Tenant shall not discharge into any sanitary sewer system serving the
Premises or the Office Complex any toxic or hazardous sewage or waste other than
that which is normal domestic waste water for the
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type of business contemplated by this Lease to be conducted by Tenant on, in or
from the Premises. Any toxic or hazardous sewage or waste which is produced or
generated by Tenant or in connection with the operation of Tenant's business
shall be handled or disposed of as required by and in compliance with all
applicable local, state and federal laws, ordinances and rules or regulations or
shall be pre-treated to the level of domestic wastewater prior to discharge into
any sanitary sewer system serving the Premises or the Office Complex. To the
extent the presence of Hazardous Materials in the Premises or elsewhere in the
Office Complex is not caused by, through or under Tenant, Landlord will
remediate to the extent and in the manner Landlord is required to do so under
applicable law (but Landlord retains the right to pursue any available remedies
as against any third party that may be liable for such clean-up, removal and
disposal costs).
ARTICLE VI
ASSIGNMENT AND SUBLETTINGS
6.1 PROHIBITION. TENANT MAY NOT ASSIGN THIS LEASE, NOR SUBLET ALL OR
ANY PORTION OF THE PREMISES WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, WHICH
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. THE INTEREST OF TENANT UNDER THIS
LEASE MAY NOT BE PLEDGED, MORTGAGED OR OTHERWISE ENCUMBERED WITHOUT THE PRIOR
WRITTEN CONSENT OF LANDLORD, WHICH CONSENT MAY BE WITHHELD OR GRANTED ON SUCH
CONDITIONS AS LANDLORD MAY DETERMINE IN ITS SOLE AND ABSOLUTE DISCRETION. NO
ASSIGNMENT OR TRANSFER OF TENANT'S INTEREST IN THIS LEASE, NOR ANY SUBLEASE OF
THE PREMISES OR ANY PORTION THEREOF, MAY BE INVOLUNTARILY EFFECTUATED BY
OPERATION OF LAW WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, WHICH CONSENT
MAY BE WITHHELD IN LANDLORD'S SOLE AND ABSOLUTE DISCRETION. IN THE EVENT OF THE
MERGER OR CONSOLIDATION OF TENANT WITH ANY OTHER CORPORATION OR CORPORATIONS,
SAME SHALL BE DEEMED TO BE A VOLUNTARY ASSIGNMENT OF THIS LEASE SUBJECT TO THE
FOREGOING REQUIREMENT OF CONSENT OF LANDLORD, PROVIDED THAT IF THE SURVIVING
CORPORATION IN SUCH MERGER OR CONSOLIDATION SHALL BE A CORPORATION THE STOCK OF
WHICH IS TRADE ON A NATIONAL OR REGIONAL STOCK EXCHANGE, THE NASDAQ OR IN THE
OVER-THE-COUNTER MARKET, THE SURVIVING CORPORATION SHALL BE DEEMED, FOR THE
PURPOSES HEREOF, THE ASSIGNEE OF THE TENANT'S INTEREST IN THIS LEASE AND THE
SUCCESSION OF THE SURVIVING CORPORATION TO THE TENANT'S INTEREST IN THIS LEASE
SHALL BE DEEMED TO HAVE BEEN CONSENTED TO BY LANDLORD, PROVIDED THAT LANDLORD
SHALL BE GIVEN IMMEDIATE NOTICE OF SUCH MERGER OR CONSOLIDATION.
TENANT ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY LANDLORD THAT IT IS THE
INTENTION OF LANDLORD TO ATTEMPT TO ESTABLISH AND MAINTAIN TENANCIES IN THE
OFFICE BUILDING COMPLEX IN WHICH THE PREMISES ARE LOCATED, WITH SUCH TENANT
PROFILES, TENANT MIX AND USAGES, BOTH OF LEASED PREMISES AND THE FACILITIES OF
THE OFFICE BUILDING COMPLEX AS ARE COMPATIBLE WITH THE OPERATION OF THE OFFICE
BUILDING COMPLEX AS A FIRST-QUALITY OFFICE BUILDING. ACCORDINGLY, IT IS
UNDERSTOOD THAT IN DETERMINING WHETHER TO CONSENT TO ANY PROPOSED ASSIGNMENT OR
ENCUMBRANCE OF TENANT'S INTEREST IN THIS LEASE, OR ANY SUBLETTING OF ALL OR ANY
PART OF THE LEASED PREMISES, LANDLORD SHALL NOT BE REQUIRED TO CONSENT TO ANY
ASSIGNMENT OR SUBLETTING TO ANY OF THE FOLLOWING: ANY GOVERNMENT AGENCY; ANY
EXISTING TENANT; ANY PARTY WHO IS A COMPETITOR OF LANDLORD IN THE LEASING OF
OFFICE SPACE; ANY PARTY WHOSE USE OF THE PREMISES EITHER BECAUSE OF THE NUMBER
OF ANTICIPATED OCCUPANTS OF THE PREMISES OR THE NUMBER OF ANTICIPATED CLIENTS OR
VISITORS TO THE PREMISES WOULD, IN THE JUDGMENT OF LANDLORD, RESULT IN EXCESSIVE
USE OF PARKING, ELEVATOR OR OTHER COMMON FACILITIES OF THE OFFICE COMPLEX; ANY
PARTY WHOSE ANTICIPATED USE OF THE PREMISES WOULD EXTEND, OTHER THAN
INFREQUENTLY, BEYOND THE NORMAL HOURS IN WHICH THE OFFICE COMPLEX IS KEPT OPEN
FOR ORDINARY BUSINESS HOURS TRAFFIC; ANY PROSPECTIVE TENANT WITH WHOM LANDLORD
HAS NEGOTIATED FOR THE LEASING OF OFFICE SPACE IN THE PREVIOUS SIX-MONTH PERIOD;
OR TO ANY PROSPECTIVE TENANT WHOSE USE OF THE PREMISES WOULD INCLUDE RETAIL USE.
IT IS UNDERSTOOD THAT LANDLORD'S REFUSAL OF CONSENT TO ASSIGNMENT OR SUBLETTING
BY TENANT IN ANY SUCH INSTANCE SHALL BE DEEMED FOR ALL PURPOSES OF THIS LEASE AS
REASONABLE. FURTHER, IT IS UNDERSTOOD THAT LANDLORD MAY REASONABLY REFUSE TO
CONSENT TO ASSIGNMENT OR SUBLETTING TO A TENANT OR SUBTENANT WHOSE NET WORTH IS
LESS THAN $10,000,000 DOLLARS OR IN THE CASE OF SUBLETTING OF A PART OF THE
PREMISES, WHOSE NET WORTH IS
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LESS THAN $760.00 DOLLARS MULTIPLIED BY THE NUMBER OF RENTABLE SQUARE FEET OF
SPACE IN THE PART BEING SUBLET (SUCH NET WORTH SHALL BE DEMONSTRATED BY THE THEN
CURRENT FINANCIAL STATEMENTS OF THE PROPOSED ASSIGNEE OR SUBTENANT CERTIFIED BY
ITS CHIEF FINANCIAL OFFICER DELIVERED TO LANDLORD), OR WHOSE REPUTATION IS
MATERIALLY LESS THAN THAT OF TENANT. IT IS UNDERSTOOD THAT THE REFERENCE IN THIS
PARAGRAPH TO THE MATTERS ABOVE STATED AS REASONABLE GROUNDS FOR LANDLORD'S
DENIAL OF CONSENT TO ASSIGNMENT OR SUBLETTING IS NOT INTENDED TO BE EXHAUSTIVE
OF THE GROUNDS ON WHICH LANDLORD MAY REASONABLY REFUSE CONSENT TO AN ASSIGNMENT
OR SUBLETTING BY TENANT, AND LANDLORD RESERVES THE RIGHT TO REVIEW, ON A CASE BY
CASE BASIS, ANY REQUEST FOR SUCH CONSENT.
ANY ATTEMPT AT ASSIGNMENT, TRANSFER, MORTGAGE OR OTHER ENCUMBRANCE OF
THIS LEASE, OR ANY ATTEMPTED SUBLEASE OF ALL OR ANY PART OF THE PREMISES,
WITHOUT LANDLORD'S CONSENT SHALL, AT THE OPTION OF LANDLORD, CONSTITUTE A
DEFAULT BY TENANT UNDER THIS LEASE, ENTITLING LANDLORD TO EXERCISE ANY OR ALL OF
ITS RIGHTS AND REMEDIES UNDER THIS LEASE, AND IN SUCH CASE TENANT SHALL REMAIN
LIABLE FOR ALL RENT AND OTHER SUMS DUE UNDER THIS LEASE AND ALL DAMAGES SUFFERED
BY LANDLORD ON ACCOUNT OF SUCH DEFAULT BY TENANT.
IN ANY INSTANCE IN WHICH TENANT SHALL SEEK THE CONSENT OF LANDLORD
REQUIRED UNDER THIS ARTICLE, TENANT SHALL MAKE REQUEST FOR SUCH CONSENT IN
WRITING, WHICH REQUEST SHALL BE ACCOMPANIED BY A COPY OF THE PROPOSED INSTRUMENT
OF ASSIGNMENT, TRANSFER, ENCUMBRANCE OR SUBLETTING, IF AVAILABLE, AND A
STATEMENT IDENTIFYING THE PROPOSED ASSIGNEE, TRANSFER, ENCUMBRANCER OR
SUBLESSEE, GIVING THE NAME, MAILING ADDRESS AND TELEPHONE NUMBER OF SUCH PARTY
AND ITS CHIEF EXECUTIVE OFFICER. TENANT SHALL PROMPTLY FURNISH TO LANDLORD ALL
FURTHER INFORMATION AND ITEMS REASONABLY REQUESTED BY LANDLORD WITHIN TEN (10)
DAYS AFTER RECEIPT BY LANDLORD OF TENANT'S REQUEST FOR CONSENT. LANDLORD SHALL
HAVE TWENTY (20) DAYS AFTER RECEIPT OF TENANT'S REQUEST FOR THE INFORMATION OR
ITEMS REQUESTED BY LANDLORD IN RESPONSE TO TENANT'S REQUEST FOR CONSENT,
WHICHEVER IS LATER, TO REVIEW THE PROPOSED TRANSACTION AND ADVISE OF ITS CONSENT
TO OR DISAPPROVAL OF THE TRANSACTION. IF LANDLORD FAILS TO RESPOND WITHIN SUCH
PERIOD, SUCH TRANSACTION SHALL BE DEEMED TO BE APPROVED. CONSENT GRANTED PRIOR
TO RECEIPT OF THE INSTRUMENT OF ASSIGNMENT, TRANSFER, ENCUMBRANCE OR SUBLETTING
SHALL BE CONDITIONED UPON LANDLORD'S APPROVAL OF SAID INSTRUMENT WHICH SHALL BE
PRESENTED TO LANDLORD PROMPTLY UPON EXECUTION, AND WHICH APPROVAL OF SUCH
INSTRUMENT SHALL NOT BE ARBITRARILY OR UNREASONABLY WITHHELD OR DELAYED.
NO ASSIGNMENT OR SUBLEASE SHALL RELIEVE TENANT FROM ANY LIABILITY UNDER
THIS LEASE, WHETHER ACCRUED AS OF THE DATE OF THE ASSIGNMENT OR SUBLEASE OR
THEREAFTER ACCRUING AND ANY ASSIGNMENT OR SUBLEASE SHALL BE SUBJECT TO THE
AGREEMENT AND ACKNOWLEDGEMENT IN THE INSTRUMENT OF ASSIGNMENT OR SUBLETTING THAT
TENANT AND ITS ASSIGNEE OR SUBLESSEE ARE JOINTLY AND SEVERALLY LIABLE AND
RESPONSIBLE TO LANDLORD FOR THE PERFORMANCE OF ALL OF TENANT'S OBLIGATIONS UNDER
THIS LEASE.
6.2 ASSIGNMENT IN BANKRUPTCY. Notwithstanding any of the foregoing
provisions, covenants, and conditions of this article, in the event that this
Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, 11 U.S.C. 101 et seq. (the "Bankruptcy Code"), any and all
monies or other considerations payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Landlord, shall be
and remain the exclusive property of Landlord and shall not constitute property
of Tenant or of the estate of the Tenant within the meaning of the Bankruptcy
Code. Any and all monies or other consideration constituting Landlord's property
under the preceding sentence not paid or delivered to Landlord shall be held in
trust for the benefit of Landlord and be promptly paid to or turned over to
Landlord. If Tenant proposes to assign this Lease pursuant to the provisions of
the Bankruptcy Code to any person or entity who shall have made a bona fide
offer to accept an assignment of this Lease on terms acceptable to Tenant, then
notice of such proposed assignment setting forth (a) the name and address of
such person, (b) all of the terms and conditions of such offer, and (c) the
adequate assurance to be provided by Tenant to assure such person's future
performance under the Lease, including, without limitation, the assurances
referred to in the Bankruptcy Code, or any such successor or substitute
legislation or rule thereto, shall be given to Landlord by Tenant no later than
twenty (20) days after receipt by Tenant, but in any event no later than ten
(10) days prior to the date that Tenant shall make application to a court of
competent jurisdiction for authority and approval to enter in such assignment
and assumption. Landlord shall thereupon have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions which may be payable
out of the consideration to be paid by such person for the assignment of this
Lease. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
6.3 EFFECT OF CONSENT. The consent by Landlord to any assignment,
transfer, sublease, mortgage or encumbrance shall not be construed as a waiver
or release of Tenant from liability for the performance of any of the covenants
and obligations to be performed by Tenant under this Lease, nor shall the
collection or acceptance of rent from any assignee, transferee or subtenant
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constitute a waiver or release of Tenant from any of its liabilities or
obligations under this Lease. Landlord's consent to any assignment, transfer,
sublease, mortgage or encumbrance shall not be construed as relieving Tenant (or
any such assignee or subtenant, transferee, mortgagee, or encumbrancer) from the
obligation of obtaining Landlord's consent to any further assignment, transfer,
sublease, mortgage or encumbrance in accordance with the provisions of this
article, as applicable. For any period during which Tenant is in material
default hereunder, Tenant hereby assigns to Landlord the rents or other sums due
from any subtenant or assignee of Tenant and hereby authorizes each subtenant or
assignee to pay said rents or other sums directly to Landlord. For any period
during which Tenant is in material default hereunder, all monies, rents or other
consideration paid or delivered to, or received by, Tenant from any subtenant or
assignee shall be held by Tenant in trust for Landlord and shall be paid to
Landlord immediately upon demand therefor.
In addition to other Rent due hereunder, in the event of any assignment
or subletting, any "profits" with respect to the space so assigned or sublet
shall be paid to Landlord as Additional Rent hereunder. "Profits" are hereby
defined to be any amounts paid by the assignee or sublessee and/or consideration
received by or on behalf of Tenant, with respect to any period, in excess of the
Base Rent and/or Additional Rent paid by Tenant to Landlord with respect to the
space so assigned or sublet, less reasonable expenses (such as brokerage
commission, improvements, attorney's fees and advertising costs) paid by Tenant
in obtaining such assignment or subletting. IN THE CASE OF SUBLETTING OF A
PORTION OF THE PREMISES, PROFIT SHALL BE CALCULATED ON A SQUARE FOOT BASIS,
ALLOCATING THE BASE RENT AND/OR ADDITIONAL RENT FOR THE PREMISES HEREUNDER TO
THE FIRST FLOOR SPACE AT 27.4% OF THE TOTAL BASE RENT AND ADDITIONAL RENT FOR
THE ENTIRE PREMISES AND TO THE SEVENTH FLOOR SPACE AT 62.6% OF SUCH TOTAL BASE
RENT AND ADDITIONAL RENT.
ARTICLE VII
TENANT'S MAINTENANCE AND REPAIRS
7.1 MAINTENANCE. Tenant will keep and maintain the Premises and all
fixtures and equipment located therein in clean, safe and sanitary condition,
will take good care thereof and make all required repairs thereof, and will
suffer no waste or injury thereto. Landlord, at its cost, shall provide and
install Building Standard light fixtures as provided in Exhibit "C" attached
hereto, if any, and all replacement tubes for such light fixtures. All other
bulbs, tubes and lighting fixtures for the Premises shall be provided and
installed by Tenant at its cost and expense.
7.2 REPAIRS. Except as otherwise provided in Article XVI hereof, all
injury, breakage and damage to the Premises and to any other part of the Office
Complex caused by any act or omission of Tenant, or of any agent, employee,
subtenant, contractor, customer or invitee of Tenant, shall be repaired by and
at the sole expense of Tenant, except that Landlord shall have the right, at its
option, to make such repairs and to charge Tenant for all costs and expenses
incurred in connection therewith, as Additional Rent hereunder, which shall be
due and payable upon ten (10) days after written demand.
ARTICLE VIII
TENANT ALTERATIONS
8.1 PROHIBITION. Tenant will not make or permit anyone to make any
alteration, addition, improvements, removal, demolition or other construction or
work (collectively "Alterations") structural or otherwise, in or to any portion
of the interior or exterior of Premises or the Office Complex, without the prior
written consent of Landlord, which CONSENT WITH RESPECT TO STRUCTURAL
ALTERATIONS AND ALTERATIONS TO BUILDING SYSTEMS (INCLUDING WITHOUT LIMITATION,
ELECTRICAL, MECHANICAL AND/OR PLUMBING SYSTEMS, MAY BE GRANTED OR DENIED IN
LANDLORD'S SOLE AND ABSOLUTE DISCRETION, AND WHICH PRIOR WRITTEN CONSENT WITH
RESPECT TO GENERAL COSMETIC DECORATING WHICH CANNOT BE SEEN FROM THE OUTSIDE OF
THE PREMISES, WHICH IS LIMITED TO RELOCATION OF: PARTITIONS, LIGHTS, PLUMBING,
ELECTRICAL OUTLETS (WITHOUT INCREASING ELECTRICAL CAPACITY) LANDLORD SHALL NOT
UNREASONABLY WITHHOLD CONSENT. Landlord may impose any conditions upon its
approval as it REASONABLY deems appropriate, including, without limitation, (a)
the review and approval of any plans and specifications for such work, (b) the
review and approval of the contractor or other persons who will perform the
work, and (c) the acquisition by Tenant of specified additional insurance. All
Alterations permitted by Landlord and constructed or installed by Tenant shall
conform to all laws, ordinances, rules and regulations and requirements as set
forth in Section 5.2 of this Lease. Tenant agrees to obtain and deliver to
Landlord written, unconditional waivers of mechanic's and materialmen's liens
against the Office Complex and the Land from all proposed contractors,
subcontractors, laborers and material suppliers for all work, labor and services
to be performed and materials to be furnished in connection with any such
alteration, addition, removal or demolition PERFORMED BY, THROUGH OR UNDER
TENANT OR ON TENANT'S BEHALF.
8.2 INDEMNIFICATION, REMOVAL. Tenant shall indemnify and hold Landlord
harmless from and against any and all expenses, liens, claims, liabilities and
damages based on or arising, directly or
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indirectly, by reason of any Alterations within or upon the Premises. If any
Alterations FOR WHICH LANDLORD'S CONSENT IS NECESSARY HEREUNDER are undertaken
or permitted by Tenant without the prior written consent of Landlord, Landlord
shall have the right to remove and correct such Alterations and restore the
Premises to its condition immediately prior thereto, and Tenant shall be liable
for all costs and expenses incurred by Landlord in connection therewith, which
shall be paid by Tenant to Landlord as Additional Rent.
ARTICLE IX
LANDLORD'S INTEREST NOT SUBJECT TO LIENS
9.1 LIENS, GENERALLY. Tenant shall not create or cause to be imposed,
claimed or filed upon the Premises, the Office Complex or the Land or upon any
portion or portions thereof, or upon the interest of Landlord therein, any lien,
claim of lien, order for the payment of money, charge or other encumbrance
whatsoever BY THROUGH OR UNDER TENANT. If any such lien, order, charge or other
encumbrance shall be imposed, claimed or filed, Tenant shall, at its sole cost
and expense, cause the same to be fully paid and satisfied or otherwise
discharged of record by bonding or otherwise not later than fifteen (15) days
following the earlier of (a) demand from Landlord that the same be paid and
satisfied or discharged of record or (b) AND NOTICE TO TENANT OF the filing for
record of such lien, order, charge or other encumbrance. Tenant shall indemnify
and save and hold Landlord harmless from and against any and all costs,
liabilities, suits, penalties, claims and demands whatsoever, and from and
against any and all attorneys' fees, at both trial and all appellate levels,
resulting or on account thereof and therefrom. In the event that Tenant shall
fail to comply with the foregoing provisions of this Section, such failure shall
constitute a default hereunder and Landlord shall have, in addition to its other
rights under this Lease, the option of paying, satisfying or otherwise
discharging (by bonding or otherwise) such lien, charge or encumbrance and
Tenant agrees to reimburse Landlord, upon demand and Additional Rent, for all
sums so paid and for all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon, until paid.
9.2 MECHANICS LIENS. Landlord's interest in the Premises shall not be
subjected to liens of any nature by reason of Tenant's construction, alteration,
repair, restoration, replacement or reconstruction of any improvements on or in
the Premises, including those arising in connection with or as an incident to
the construction of any Tenant improvements or permitted Alterations, or by
reason of any other act or omission of Tenant (or of any person claiming by,
through or under Tenant) including, but not limited to, mechanics' and
materialmen's liens. All persons dealing with Tenant are hereby placed on notice
that such persons shall not look to Landlord or to Landlord's credit or assets
(including Landlord's interest in the Premises or the Office Complex) for
payment or satisfaction of any obligations incurred in connection with the
construction, alteration, repair, restoration, replacement or reconstruction
thereof by or on behalf of Tenant. Tenant has no power, right or authority to
subject Landlord's interest in the Premises, the Office Complex or the Land to
any mechanic's or materialmen's lien or claim of lien or any other encumbrance
whatsoever. If a lien, a claim of lien or an order for the payment of money
shall be imposed against the premises or any improvement thereon, therein or
thereto, on account of work performed, or alleged to have been performed, for or
on behalf of Tenant, Tenant shall, within fifteen (15) days after written notice
of the imposition of such lien, claim or order, cause the Premises and such
improvements, to be released therefrom by the payment of the obligation secured
thereby or by furnishing a bond or by any other method prescribed or permitted
by law. If a lien is released, Tenant shall thereupon furnish Landlord with a
written instrument of release in form for recording in the office of the Clerk
of the Circuit Court, Dade County, Florida, and otherwise sufficient to
establish the release as a matter of record.
9.3 NOTICES OF COMMENCEMENT. Prior to commencement by Tenant of any
Alterations for which a Notice of Commencement is required pursuant to Chapter
713, Florida Statutes (or its successor), Tenant shall record such a notice in
the office of the Clerk of the Circuit Court, Dade County, Florida, identifying
Tenant as the party for whom such work is being performed and requiring the
service of copies of all notices, liens or claims of lien upon Landlord. Any
such Notice of Commencement shall clearly reflect that the interest of Tenant in
the Premises is that of a leasehold estate and shall also clearly reflect that
the interest of Landlord as the fee simple owner of the Premises shall not be
subject to mechanics or materialmen's liens on account of the work which is the
subject of such Notice of Commencement. A copy of any such Notice of
Commencement shall be furnished to and approved by Landlord and its attorneys
prior to the recording thereof, as aforesaid.
ARTICLE X
KEYS, SIGNS, FURNISHINGS AND EQUIPMENT
10.1 KEYS. Landlord shall provide two (2) keys to the front door of the
office and two (2) keys to the restrooms on the floor. Additional keys will be
provided at the cost of three dollars ($3.00) per key.
10.2 SIGNS. No sign, advertisement or notice (collectively "Signs")
shall be inscribed, painted, affixed or otherwise displayed on any part of the
exterior or the interior of the Premises or the Office Complex, except on the
directories (WHICH SHALL NOT EXCEED FIVE (5) DIRECTORY STRIPS) and the doors of
office and such other areas as are designated by Landlord, and then only in such
place, number, size, color and style as are approved by Landlord in its sole
discretion. All of Tenant's Signs which are approved by Landlord shall be
installed and maintained by Landlord, at Tenant's sole cost and expense.
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If any Sign that had not been approved by Landlord is exhibited, displayed or
installed by Tenant, Landlord shall have the right to remove the same at
Tenant's expense.
Notwithstanding anything to the contrary contained in this Article 10, Tenant
(without Landlord's consent) may install any signage it desires within the
Premises, so long as such signage is not visible form anywhere outside the
Premises.
10.3 PROHIBITED ADVERTISING. Landlord shall have the right to prohibit
any advertisement or solicitation of or by Tenant which in Landlord's sole
opinion tends to impair the reputation of the Office Complex or its desirability
as a high-quality office building and, upon written notice from Landlord, Tenant
shall immediately refrain from and discontinue any such advertisement.
10.4. LANDLORD'S SIGNAGE RIGHTS. Landlord reserves the right to affix,
install and display signs, advertisements and notices on any part of the
exterior or interior of the Office Complex.
10.5 REMOVAL OF SIGNAGE. At the end of the Lease Term or earlier
termination of this Lease, Tenant shall remove all Signs from the Premises or
Office Complex and, at its expense, repair any damage to the Premises or Office
Complex on account thereof, or at Landlord's option, Landlord may remove such
Signs and repair such damage, if any, at Tenant's expense, which shall be repaid
to Landlord upon demand.
10.6 FURNISHINGS. Landlord shall have the right to prescribe the weight
and position of safes and other heavy equipment and fixtures in the Premises,
which, if permitted by Landlord, shall be installed in such manner so as to
adequately and safely distribute their weight. Any and all damage or injury to
the Premises or Office Complex caused by moving the same into or upon the
Premises, shall be repaired by Tenant at its sole cost and expense, or, at
Landlord's option, Landlord may repair such damage at Tenant's expense, which
shall be repaid to Landlord upon ten (10) days written demand. No furniture,
equipment or other bulky material of any description will be received into the
Office Complex or carried in the elevators except as approved by Landlord, and
all such furniture, equipment and other bulky material shall be delivered only
through the designated delivery entrance of the Office Complex and the
designated freight elevator. Landlord may, but shall not be obligated to,
supervise all moving of furniture, equipment and other materials, but Landlord
shall not, however, be responsible for any damage to or charges for moving the
same. Tenant agrees to remove promptly from the sidewalks adjacent to or the
hallways or walkways within the Office Complex any of Tenant's furniture,
equipment or other material there delivered or deposited.
10.7 EQUIPMENT. Tenant will not install or operate in the Premises any
electrically operated equipment or machinery that operates on greater than 110
volt power without first obtaining the prior written consent of the Landlord.
Landlord may condition such consent as it deems appropriate and may require the
payment by Tenant of an amount, as Additional Rent, in compensation for the
excess consumption of electricity or other utilities and for the cost of any
additional wiring or apparatus that may be occasioned by the operation of such
equipment or machinery, together with applicable sales tax, if any. Tenant shall
not install any equipment of any type or nature that will or may necessitate any
changes, replacements or additions to, or in the use of, the water system,
heating system, plumbing system, air-conditioning system or electrical system of
the Premises or the Office Complex without first obtaining the prior written
consent of Landlord, which consent may be withheld in Landlord's sole and
absolute discretion. Tenant shall not permit business machines and mechanical
equipment belonging to Tenant to cause noise or vibration that may be
transmitted to the structure of the Office Complex or to any space therein to
such a degree as to be objectionable to Landlord or to any Tenant in the Office
Complex.
ARTICLE XI
INSPECTION BY LANDLORD
Landlord and its agents and representatives, shall have the right to enter the
Premises, at all reasonable times upon reasonable notice (but at all times and
without notice in case of an emergency), without charge therefor to Landlord and
without diminution of the rent payable by Tenant, to examine, inspect and
protect the Premises and the Office Complex, to make such alterations and/or
repairs as in the sole judgment of Landlord may be deemed necessary, or to
exhibit the same to prospective Tenants during the last one hundred eight (180)
days of the Lease Term, provided, however, that Landlord shall not thereby
assume any responsibility for the performance of any of Tenant's obligations
hereunder, nor any liability for the improper performance thereof. In connection
with any such entry, Landlord shall endeavor to minimize the disruption to
Tenant's use of the Premises.
ARTICLE XII
INSURANCE
12.1 LIABILITY INSURANCE. Throughout the Lease Term, Tenant shall
obtain and maintain, at Tenant's sole cost, comprehensive general public
liability insurance including fire, legal liability and contractual liability
coverage in a company or companies licensed to do business in the State of
Florida and approved by Landlord. Said insurance shall be in minimum amounts
approved by Landlord from time to time and shall name Landlord as an additional
insured thereunder. Initially, Tenant agrees to maintain general liability
insurance in the minimum amount of $1,000,000 combined single limit for
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injury to any number of persons in a single occurrence and for damage to
property. The limit of said insurance shall not, however, limit the liability of
the Tenant hereunder. Tenant shall furnish to Landlord evidence of such
insurance together with evidence of any excess liability insurance which Tenant
may carry. In addition, if requested by the holder of any mortgage against the
Office Complex or the Land, or any portion thereof, said insurance shall also
include such mortgagee as an additional insured as its interest may appear. If
requested by Landlord, receipts evidencing payment of the premium for such
insurance shall be delivered by Tenant at least annually, and each such policy
shall contain an endorsement prohibiting cancellation or reduction of coverages
without first giving Landlord thirty (30) days prior written notice of such
proposed action.
12.2 PROPERTY INSURANCE. Tenant shall also maintain insurance upon all
property situated in the premises owned by Tenant or for which Tenant is legally
liable and on fixtures and improvements installed in the Premises by or on
behalf of Tenant. Such policies shall be for an amount equal to and not less
than 100% of the full replacement cost, with coverage against at least fire, and
with standard extended coverage, vandalism, malicious mischief, sprinkler
leakage and water damage coverage.
12.3 OTHER INSURANCE. Worker's compensation insurance for all Tenant's
employees working in or at the Premises in an amount sufficient to comply with
applicable laws or regulations shall be maintained by Tenant. Tenant shall
maintain insurance against such other perils and in such amounts as Landlord and
any mortgagee of Landlord may from time to rime reasonably require in writing;
provided however, Landlord will not be arbitrary or discriminatory in its
requirements and such insurance shall be available at commercially reasonable
rates.
12.4 REQUIREMENTS. All policies of insurance required of Tenant
hereunder shall contain a severability of interest clause, a cross-liability
clause, shall be primary and shall not call into contribution any other
insurance available to Landlord.
12.5 FAILURE TO PROCURE INSURANCE. In the event Tenant shall fail to
procure insurance required under this Article and fail to maintain the same in
full force and effect continuously during the term of this Lease, Landlord shall
be entitled to procure the same and Tenant shall immediately reimburse Landlord
upon demand for such premium expense as Additional Rent.
12.6 WAIVER OF SUBROGATION. Each of Landlord and Tenant hereby releases
the other to the extent of its insurance coverage, from any and all liability
for any loss or damage caused by fire or any of the extended coverage
casualties, even if such fire or other casualty shall be brought about by the
fault or negligence of the other party, or any person under such other party,
provided, however, this release shall be in force and in effect only with
respect to loss or damage occurring during such time as the releaser's policies
of fire and extended coverage insurance shall contain a clause to the effect
that this release shall not affect such policies or the right of the releaser to
recover thereunder. Each of Landlord and Tenant agrees that its fire and
extended coverage insurance policies shall include such a clause so long as the
same is obtainable and is includable without extra cost, or if such extra cost
is chargeable therefor, so long as the other party pays such extra cost. If
extra cost is chargable therefor, each party will advise the other thereof and
of the amount thereof, and the other party, at its election may pay the same but
shall not be obligated to do so.
12.7 INSURANCE BY LANDLORD. Landlord shall, as part of Operating
Expenses, obtain any and all insurance coverage in connection with the use and
operation of the Office Complex, which shall include, but not be limited to,
fire and extended coverage at full replacement value; comprehensive general
public liability in a minimum amount of $1,000,000.00; difference in conditions;
rental interruption insurance for no less than one (1) year's annual operating
income; excess limits of liability insurance (umbrella coverage); and any and
all other insurance, including boiler and machinery insurance as Landlord may
reasonably require to adequately protect the interest of Landlord in the Office
Complex and Land against liability afforded by such insurance coverage.
12.8 INCREASE IN LANDLORD'S INSURANCE PREMIUM. Tenant shall not conduct
or permit to be conducted any activity, or place any equipment, sign or
furnishing, in or about the Premises or the Office Complex, which will in any
way increase the rate of fire insurance or other insurance on the Office
Complex. If any increase in the rate of fire insurance or other insurance is
stated by any insurance company or by the applicable Insurance Rating Bureau to
be due to any activity or equipment of Tenant in or about the Premises or the
Office Complex, such statement shall be conclusive evidence that the increase in
such rate is due to such activity or equipment and, as a result thereof, Tenant
shall be liable for the amount of such increase. Tenant shall reimburse Landlord
for such amount upon ten (10) days written demand from Landlord and such sum
shall be considered Additional Rent payable hereunder.
12.9 BLANKET POLICY. Notwithstanding anything to the contrary contained
in this Article 12 with respect to the insurance coverage and policies required
of Tenant under this Lease, Tenant may utilize a "blanket" policy of insurance,
provided that Tenant provides Landlord with satisfactory
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evidence that (i) Landlord is an additional insured under such blanket policy,
and (ii) such blanket policy contains sufficient coverage for the replacement
cost value as required by Section 12.2.
ARTICLE XIII
SERVICES AND UTILITIES
13.1 SERVICES AND UTILITIES. Landlord shall furnish to the Premises
year-round ventilation and air-conditioning and heat during the seasons when
they are required, as determined in Landlord's reasonable judgment. Landlord
shall also provide reasonably adequate electricity, water, exterior
window-cleaning service and janitorial service after 6:00 p.m. on Monday through
Friday only (excluding legal holidays), as determined in Landlord's reasonable
judgment and in accordance with standards customarily provided in first-class
office buildings in the greater metropolitan Miami area. Landlord will also
provide elevator service; provided, however, that Landlord shall have the right
to remove elevators from service from time to time as may be required for moving
freight or for servicing or maintaining the elevators and/or the Office Complex,
or in the event of emergencies.
13.2 NORMAL HOURS. The services and utilities required to be furnished
by Landlord, other than electricity and water, will be provided only during the
normal hours of operation of the Office Complex, except as otherwise specified
herein. The normal hours of operation of the Office Complex will be 8:00 a.m. to
7:00 p.m. on Monday through Friday (except legal holidays) and 8:00 a.m. to 1:00
p.m. on Saturdays. There will be no normal hours of operation of the Office
Complex on Sundays or legal holidays and Landlord shall not be obligated to
maintain or operate the Office Complex at such times unless special arrangements
have been made by Tenant. If Tenant requires air-conditioning or heat beyond the
normal hours of operation set forth herein, Landlord will furnish such air
conditioning or heat, provided Tenant gives Landlord's agent sufficient advance
notice of such requirement and Tenant agrees to pay for the cost of such extra
service in accordance with Landlord's then current schedule of costs and
assessments for such extra service, which WILL NOT EXCEED THE PREVAILING HOURLY
RATE CHARGE FOR AIR CONDITIONING IN SIMILAR BUILDINGS IN CORAL GABLES.
13.3 INTERRUPTIONS. Landlord shall have no liability to Tenant
whatsoever as a result of Landlord's failure or inability to furnish any of the
utilities or services required to be furnished by Landlord hereunder, whether
resulting from breakdown, removal from service for maintenance or repairs,
strikes, scarcity of labor or materials, acts of God, governmental requirements
or from any other cause whatsoever. No such failure or inability of Landlord to
furnish the utilities or services required hereunder shall be deemed or
considered to be or constitute an eviction, actual or constructive, of the
Tenant from the Premises, nor shall it entitle Tenant to terminate this Lease or
to receive an abatement of any rent payable hereunder.
NOTWITHSTANDING THE FOREGOING, IF BECAUSE OF A MATTER (OTHER THAN
CASUALTY) WITHIN LANDLORD'S CONTROL, LANDLORD FAILS TO PROVIDE AN ESSENTIAL
BUILDING SERVICE (SUCH AS AT LEAST ONE (1) ELEVATOR, ELECTRICITY, OR HEATING AND
AIR-CONDITIONING), AND SUCH FAILURE RENDERS ALL OR ANY PORTION OF THE PREMISES
UNTENANTABLE FOR TEN (10) CONSECUTIVE BUSINESS DAYS AFTER WRITTEN NOTICE FROM
TENANT, TENANT SHALL BE ENTITLED TO AN ABATEMENT OF BASE RENT AND ADDITIONAL
RENT OTHER THAN PARKING CHARGES FOR PARKING SPACES ACTUALLY UTILIZED (IN
PROPORTION TO THE AREA SO UNTENANTABLE) UNTIL SUCH ESSENTIAL SERVICE IS
RESTORED.
13.4 ENERGY CONSERVATION CONTROL. Tenant shall at Landlord's request
comply with all mandatory and voluntary energy conservation controls and
requirements applicable to office buildings that are imposed or instituted by
any federal, state or local governmental body, including, without limitation,
controls on the permitted range of temperature settings in office buildings, and
requirements necessitating curtailment of the volume of energy consumption or
the hours of operation of the Office Complex. Any terms or conditions of this
Lease that conflict or interfere with compliance with such controls or
requirements shall be suspended for the duration of such controls or
requirements. Tenant's compliance with such controls or requirement shall not be
deemed or considered to be or constitute an eviction, actual or constructive, of
the Tenant from the Premises, nor shall such compliance entitle Tenant to
terminate this Lease or to receive an abatement of any rent payable hereunder.
13.5 ACCESS. EXCEPT AS IMPAIRED BY VIRTUE OF REPAIRS OF ALTERATIONS
(BUT SUCH REPAIRS AND ALTERATIONS SHALL NOT PRECLUDE ACCESS), CASUALTY OR AS
OTHERWISE PROVIDED IN THIS LEASE AND SUBJECT TO LANDLORD'S REASONABLE RULES AND
REGULATIONS, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO SECURITY, TENANT
SHALL HAVE ACCESS TO THE PREMISES, BUILDING AND PARKING FACILITIES TWENTY-FOUR
(24) HOURS A DAY, SEVEN (7) DAYS PER WEEK FOR 365 DAYS PER YEAR.
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ARTICLE XIV
LIABILITY OF LANDLORD, INDEMNIFICATION BY TENANT
14.1 LIABILITY OF LANDLORD. EXCEPT TO THE EXTENT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD, ITS AGENTS, EMPLOYEES OR
CONTRACTORS, AND EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS LEASE, Landlord
shall not be liable to Tenant, its employees, agents, business invitees,
licensees, customers, clients, family members or guests for any damage, injury,
loss, compensation or claim, including but not limited to claims for the
interruption of or loss to Tenant's business, based on, arising out of or
resulting from any cause whatsoever, including, but not limited to (a) repairs
to any portion of the Premises or the Office Complex; (b) interruption in
Tenant's use of the Premises; (c) any accident or damage resulting from the use
and operation (by Landlord, Tenant or any other person or persons) of elevators,
or of heating, cooling, electrical or plumbing equipment or apparatus; (d) the
termination of this Lease by reason of the condemnation or destruction of the
Premises or the Office Complex in accordance with the provisions of this Lease;
(e) any fire, robbery, theft, mysterious disappearance or other casualty; (f)
the actions of any other Tenants of the Office Complex or of any other person or
persons; and (g) any leakage in any part or portion of the Premises or the
Office Complex, whether from water, rain or other precipitation that may leak
into, or flow from, any part of the premises or the Office Complex, or from
drains, pipes or plumbing fixtures in the Office Complex.
Any goods, property or personal effects stored or placed by the Tenant or its
employees in or about the Premises or Office Complex shall be at the sole risk
of the Tenant, and the Landlord shall not in any manner be held responsible
therefor. It is understood that the employees of the Landlord are prohibited
from receiving any packages or other articles delivered to the Office Complex
for Tenant, and if any such employee receives any such package or articles
delivered to the Office Complex for Tenant, and if any such employee receives
any such package or articles, such employee shall be acting as the agent of the
Tenant for such purposes and not as the agent of the Landlord. Notwithstanding
the foregoing provisions of this Section, Landlord shall not be released from
liability to Tenant for any damage or injury caused by the willful misconduct of
Landlord or its employees; provided, however, in no event shall Landlord have
any liability to Tenant for any claims based on the interruption of or loss to
Tenant's business.
14.2 INDEMNIFICATION OF LANDLORD. Tenant shall defend, indemnify and
save and hold Landlord harmless from and against any and all liabilities,
obligations, losses, damages, injunctions, suits actions, fines, penalties,
claims, demands, costs and expenses of every kind or nature, including
reasonable attorneys' fees (BUT NOT AGAINST ANY OF THE SAME TO THE EXTENT THAT A
GROSSLY NEGLIGENT OR WILLFUL ACT OR OMISSION OF LANDLORD GAVE RISE THERETO),
arising directly or indirectly from or out of (a) any failure by Tenant to
perform any of the terms, provisions, covenants or conditions of this Lease on
Tenant's part to be performed including, without limitation, the failure to
comply with the rules and regulations for which provisions are made in Article
XV; (b) any accident, injury, or damage which shall happen at, in or upon the
Premises, however occurring; (c) any matter or thing growing out of the
condition, occupation, maintenance, alteration, repair, use or operation by any
person of the Premises, or the operation by any person of the Premises, or the
operation of the business conducted therefrom; (d) any failure of Tenant, and/or
its employees, agents, invitees, customers, licensees, or contractors, to comply
with any laws, ordinances, requirements, orders, directions, rules or
regulations of any governmental authority; (e) any contamination of the Premises
or the Office Complex occasioned by the use, transportation, storage, spillage
or discharge thereon, therein or therefrom of any toxic or hazardous chemicals,
compounds, materials or substances, whether by Tenant or by its employees,
agents, invitees, customers, licensees or contractors; (f) any use, generation,
manufacture, storage, or release of any hazardous Materials in and about the
Premises, the Office Complex or the Land, or the groundwater thereof, or any
discharge of toxic or hazardous sewage or waste materials from the Premises into
any sanitary sewer system serving the premises or the Office Complex, whether by
Tenant, its employees, agents, invitees, customers, licensees or contractors;
and (g) any other act or omission of Tenant, its employees, agents, invitees,
customers, licensees, or contractors.
Tenant's indemnity obligations under this Section and elsewhere in this Lease
arising prior to the termination or assignment of this Lease shall survive any
such termination or assignment.
14.3 NOTICE OF CLAIM OR SUIT. Tenant shall promptly notify Landlord of
any claim, action, proceeding or suit instituted or threatened against Landlord
WITH RESPECT TO THIS LEASE, THE OFFICE COMPLEX, THE PREMISES of which Tenant
receives WRITTEN notice or of which Tenant acquires actual knowledge. In the
event Landlord OR TENANT, AS APPLICABLE is made a party to any action for
damages or other relief against which EITHER PARTY has indemnified THE OTHER,
THE INDEMNIFYING PARTY SHALL DEFEND THE INDEMNIFIED PARTY, pay all costs and
shall provide effective counsel to THE INDEMNIFIED PARTY in such litigation or,
at THE INDEMNIFIED PARTY'S option, shall pay all reasonable attorneys' fees and
costs incurred by THE INDEMNIFIED PARTY in connection with its own defense or
settlement of said litigation.
14.4 TRANSFER OF OFFICE COMPLEX. In the event that at any time Landlord
shall sell or transfer the Office Complex, or that portion thereof which
includes the Premises, provided the purchaser or transferee assumes the
obligations of the Landlord hereunder, the Landlord named herein shall not be
liable to Tenant for any obligations or liabilities based on or arising out of
events or conditions occurring on or after the date of such sale or transfer.
Furthermore, Tenant agrees to attorn to any such purchaser or transferee upon
all terms and conditions of this Lease.
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14.5 NO OFFSET AGAINST RENT. In the event that Tenant shall at any time
during the Lease term have a claim against Landlord, Tenant shall not have the
right to offset or deduct the amount allegedly owed to Tenant from any rent or
other sums payable to Landlord hereunder, it being understood that Tenant's sole
remedy for recovering upon such claim shall be to institute an independent
action against Landlord.
14.6 LIMITATION ON LIABILITY OF LANDLORD. In the event Tenant is
awarded a money judgment against Landlord, Tenant's sole recourse for
satisfaction of such judgment shall be limited to execution against the Office
Complex assets of Landlord. In no event shall any partner of Landlord or any
other person be held to have any personal liability for satisfaction of any
claims or judgments that Tenant may have against Landlord.
ARTICLE XV
RULES AND REGULATIONS
Tenant and its agents, employees, invitees, licensees, customer, client, family
members, guests and permitted subtenants shall at all times abide by and observe
the rules and regulations for the Office Complex attached hereto as Exhibit "E"
and made a part hereof by this reference. Landlord shall have the right from
time to time to amend, modify, delete or add new and additional rules and
regulations with respect to the safety, operation and maintenance of the
Premises and the Office Complex and the comfort, quiet and convenience of the
other Tenants in the Office Complex, provided that notice thereof is given to
Tenant and that such new or modified rules and regulations are not inconsistent
with the provisions of this Lease. Nothing contained in this Lease shall be
construed as imposing upon Landlord any duty or obligation to enforce any such
rules and regulations, or the terms, conditions or covenants contained in any
other lease, as against any other Tenant, and Landlord shall not be liable to
Tenant for the violation of any such rules or regulations by any other Tenant or
its employees, agents, business invitees, licensees, contractors, customers,
clients, family member or guests. However, where rules are enforced, such rules
shall be uniformly enforced in a non-discriminatory manner. The failure by
Landlord to enforce any such rules and regulations against Tenant or any other
Tenant of the Center shall not constitute a waiver of Landlord's right to do so
in the future nor any default hereunder by Landlord. If there is any
inconsistency between this Lease and such rules and regulations, the provision
of this Lease shall govern.
ARTICLE XVI
DAMAGE OR DESTRUCTION
16.1 DAMAGE OR DESTRUCTION. If, during the Lease Term, the Premises or
the Office Complex are totally or partially damaged or destroyed from any cause,
so as to render the Premises totally or partially inaccessible or unusuable,
Landlord shall diligently (taking into account the time necessary to effectuate
a satisfactory settlement with any insurance company involved) repair and
restore the Premises and the Office Complex to substantially the same condition
they were in prior to such damage; provided, however, if the repairs and
restoration cannot be completed within ninety (90) days after the occurrence of
such damage or destruction. If this Lease is terminated by Landlord pursuant to
this Section, all rent payable hereunder shall be apportioned and paid to the
date of such termination of Lease, and Tenant shall have no further rights or
remedies as against Landlord pursuant to this Lease, or otherwise. If this Lease
is not terminated pursuant to this Section, then until the repair and
restoration of the Premises is completed Tenant shall be required to pay base
Rent and Additional Rent only for that part of the Premises that Tenant is able
to use while repairs are being made, based on the ratio that the amount of
usable rentable area bears to the total rentable area in the Premises; provided,
however that there shall be no such reduction in Base Rent or Additional rent if
such damage was caused by the act or omission of Tenant or any of its employees,
agents, licensees, subtenants, contractors, invitees, customers, clients, family
members or guests, upon written demand from Landlord, Tenant shall pay to
Landlord the amount by which such costs and expenses exceed the insurance
proceeds, if any, received by Landlord on account of such damage or destruction
together with such other losses or damages which Landlord may suffer or sustain
on account thereof.
16.2 LIMITATION OF LANDLORD'S OBLIGATION. Landlord's obligation of
repair, reconstruction or replacement hereunder shall be limited to the Building
Standard Work described on Exhibit "C", if any. In no event shall Landlord be
obligated to expend for such repairs, reconstruction or replacement an amount in
excess of the insurance proceeds recovered or recoverable on account of any such
damage or destruction. Moreover, Landlord shall not be liable for delays
occasioned by adjustment or losses with insurance carriers or by any other cause
so long as Landlord shall proceed in good faith and with due diligence.
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16.3 WAIVER BY TENANT. Tenant and Landlord each hereby waives any and
all right of recovery which it might otherwise have against the other, its
agents and employees, for loss or damage to such party's contents, merchandise,
inventory, furniture, furnishings, fixtures and any other property recoverable
by Tenant under the provisions of this Lease, to the extent that the same are
covered by Tenant's insurance, notwithstanding that such loss or damage may
result from the negligence or fault of the other party, its agents or employees.
Tenant agrees that it shall insure against all such losses or damage.
16.4 LANDLORD'S TERMINATION OPTION. Notwithstanding anything to the
contrary contained herein, if the Office Complex is damaged or destroyed,
whether or not the Premises are damaged or destroyed, from any cause to such an
extent that the costs of repairing and restoring the Office Complex would exceed
fifty percent (50%) of the replacement value of the Office Complex, Landlord
shall have the right to terminate this Lease by written notice to Tenant,
provided the leases with all other Tenants in the Office Complex are similarly
terminated. This right of termination shall be in addition to any other right of
termination provided in this Lease.
16.5 TENANT'S TERMINATION OPTION. IN ADDITION TO THE FOREGOING, IF
RECONSTRUCTION OR REPAIR OF THE PREMISES REQUIRED AS A RESULT OF DAMAGE OR
DESTRUCTION RENDERING THE PREMISES TOTALLY OR PARTIALLY INACCESSIBLE OR UNUSABLE
IS NOT CAPABLE OF BEING SUBSTANTIALLY COMPLETED WITHIN ON YEAR AFTER THE DATE OF
THE CASUALTY, AS DETERMINED AND REPORTED IN WRITING BY LANDLORD'S ARCHITECT
AND/OR ENGINEER EMPLOYED IN CONNECTION WITH THE REPAIR AND RECONSTRUCTION, THEN
TENANT SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE BY WRITTEN NOTICE TO
LANDLORD DELIVERED WITHIN FORTY-FIVE (45) DAYS AFTER THE DATE OF SUCH CASUALTY
OF FIFTEEN (15) DAYS AFTER RECEIPT OF A COPY OF SUCH REPORT, WHICHEVER IS LATER,
WHEREUPON LANDLORD AND TENANT SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS UNDER
THIS LEASE.
ARTICLE XVII
CONDEMNATION
17.1 CONDEMNATION. If the whole or a substantial part (as hereinafter
defined) of the Premises, or the use or occupancy of the Premises, shall be
taken or condemned for any public or quasi-public use or purpose (including a
sale thereof under threat of such a taking), then this Lease shall terminate on
the date title thereto vests in the condemning authority, and all rent payable
hereunder shall be apportioned as of such date. If less than a substantial part
of the Premises, or the use or occupancy thereof, is taken or condemned for any
public or quasi-public use or purposes (including a sale thereof under threat of
such a taking), then this Lease shall continue in full force and effect, except
that the rent payable hereunder shall be equitably adjusted (on the basis of the
ratio of the number of square feet of rentable area taken to the total rentable
area in the Premises prior to such condemnation) as of the date title vests in
the condemning authority. For purposes of this Section, a substantial part of
the Premises shall be considered to have been taken if more than one-third (1/3)
of the premises is rendered unusable as a result of such condemnation.
17.2 AWARD. All awards, damages and other compensation paid by the
condemning authority on account of such taking or condemnation (or sale under
threat of such taking) shall belong to Landlord, and Tenant hereby assigns to
Landlord all rights to such awards, damages and compensation. Except as
expressly provided in this Section 17.2, Tenant agrees not to make any claim
against Landlord for the condemning authority for any portion of such award or
compensation attributable to damages to the Premises, the value of the unexpired
term of this Lease, the loss of profits or goodwill, leasehold improvements or
severance damages. Nothing contained herein, however, shall prevent Tenant from
pursuing a separate claim against the condemning authority for the value of
furnishings, equipment, and trade fixtures and the unamortized value of any
Building Standard leasehold improvements paid for by Tenant installed in the
Premises at the Tenant's expense and for relocation expenses, provided that such
claim does not in any way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or condemnation.
ARTICLE XVIII
DEFAULT BY TENANT
18.1 EVENTS OF DEFAULT. The occurrence of any of the following ("Events
of Default") shall constitute a breach of and default under this Lease:
(a) If Tenant shall fail to pay any installment of base Rent or
Additional Rent when due, or shall fail to pay when due any other payment
required under this Lease; in each instance on or before five (5) days after
written notice of non-payment except that written notice shall not be required
more than twice in any Lease year with respect to Base Rent installments;
(b) If Tenant shall violate or fail to comply with or perform any other
term, condition, covenant or agreement to be performed or observed by Tenant
under this Lease not requiring the payment of money, and such violation or
failure shall continue for a period of thirty (30) days after written notice
from Landlord, unless the cure reasonably requires more than thirty (30) days,
in which case Tenant shall have an additional reasonable period of time to
complete the cure, provided Tenant commences to cure within such thirty (30) day
period and then diligently prosecutes such cure to completion (except where
action is necessary to prevent loss, damage or injury to property or persons,
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in which event Tenant shall cure such failure promptly or where such failure
constitutes a violation of law, in which event Tenant shall cure such failure
within the time required by law but no later than as provided above);
(c) If Tenant or any guarantor of the Tenant's obligations hereunder
shall generally not pay its debts as they become due, or shall admit in writing
its inability to pay its debts, or shall make a general assignment for the
benefit of creditors;
(d) If Tenant or any such guarantor shall commence any case, proceeding
or other action seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property;
(e) If the Tenant or any such guarantor shall take any corporate action
to authorize any of the actions set forth in paragraphs (c) or (d) above; or
(f) If any case, proceeding or other action against the Tenant or any
guarantor of the Tenant's obligations hereunder shall be commenced seeking to
have an order for relief entered against it as debtor, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property, and such case, proceeding or other action (i)
results in the entry of an order for relief against it which is not fully stayed
within fifteen (15) business days after the entry thereof or (ii) remains
undismissed for a period of ninety (90) days;
(g) If Tenant's leasehold interest in the Premises or property therein
shall be seized under any levy, execution, attachment or other process of court
where the same shall not be vacated or stayed on appeal or otherwise within
seven (7) days thereafter, or if Tenant's leasehold interest in the Premises is
sold by judicial sale or otherwise.
(h) If Tenant shall abandon or vacate the Premises without continuing
to pay Rent when due;
(i) If the premises is used or permitted to be used for any purpose, or
the conduct of any business or activity, not permitted by this Lease after three
(3) days prior written notice from Landlord;
(j) If any assignment, sublease or transfer shall be made or deemed to
be made that is in violation of the provisions of Article VI of this Lease;
(k) If Tenant shall fail to abide by, comply with or conform to any of
the rules and regulations established and promulgated by Landlord for and with
respect to the Premises and the Office complex within five (5) days after
written notice from Landlord; provided, however, that Landlord shall not be
obligated to give notice of violation of rules and regulations more than twice
in any lease Year.
18.2 Remedies on default. If any of the events of Default hereinabove
specified in Section 18.1 of this Lease shall occur, Landlord, at any time
thereafter, shall have and may exercise any of the following rights and
remedies:
(a) Landlord may, pursuant to written notice thereof to Tenant,
terminate this Lease and peaceably or pursuant to appropriate legal proceedings,
re-enter, retake and resume possession of the Premises for Landlord's own
account and, for Tenant's breach of and default under this Lease, recover
immediately from Tenant any and all rents and other sums and damages due or in
existence at the time of such termination, including, without limitation, (i)
all Base Rent and Additional Rent, (ii) all other sums, charges, payments, costs
and expenses agreed and/or required to be paid by Tenant to Landlord hereunder,
(iii) all reasonable costs and expenses of Landlord in connection with the
recovery of possession of the Premises, including reasonable attorneys' fees and
the cost of any alterations or repairs which may be reasonably required to so
relet the Premises, or any part or parts thereof; and
(b) Landlord may, pursuant to any prior notice required by law, and
without terminating this Lease, peaceably or pursuant to appropriate legal
proceedings, reenter, retake and resume possession of the Premises for the
account of Tenant, make such alterations of and repairs to the Premises as may
be reasonably necessary in order to relet the same or any part or parts thereof
and relet
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or attempt to relet the Premises or any part or parts thereof for such term or
terms (which may be for a term or terms extending beyond the term of this
Lease), at such rents and upon such other terms and provisions as Landlord, in
its sole, but reasonable, discretion, may deem advisable. If Landlord relets or
attempts to relet the Premises, Landlord shall be the sole judge as to the terms
and provisions of any new lease or sublease and of whether or not a particular
proposed new tenant or subtenant is acceptable to Landlord. Upon any reletting,
all rents, whether Base Rent or Additional Rent, received by the Landlord from
such reletting shall be applied, (a) first, to the payment of all costs and
expenses of such recovering possession of the Premises; (b) second, to the
payment of any costs and expenses of such reletting, including brokerage fees,
attorneys' fees and the cost of any alterations, restorations and repairs
reasonably required for such reletting; (c) third, to the payment of any
indebtedness, other than rent, due hereunder from Tenant to the Landlord; (d)
fourth, to the payment of all rents due and unpaid hereunder; and (e) fifth, the
residue, if any shall be held by the Landlord and applied in payment of future
rents the same may become due and payable hereunder. If the rents received from
such reletting during any period shall be less than that required to be paid
during that period by the Tenant hereunder, Tenant shall pay any such deficiency
to the Landlord within ten (10) days after demand therefor and upon Tenant's
failure to do so, Landlord shall immediately be entitled to institute legal
proceedings for the recovery and collection of the same. Such deficiency shall
be calculated and paid at the time each payment of rent shall otherwise become
due under this Lease, or, at the option of Landlord, at the end of the term of
this Lease. Landlord shall, in addition, be immediately entitled to sue for and
otherwise recover from Tenant any other damages occasioned by or resulting from
any abandonment of the Premises or other breach of or default under this Lease
other than a default in the payment of rent. No such re-entry, retaking or
resumption of possession of the Premises by the Landlord for the account of
Tenant shall be construed as an election on the part of Landlord to terminate
this Lease unless a written notice of such intention shall be given to the
Tenant. Notwithstanding any such re-entry and reletting or attempted reletting
of the Premises or any part or parts thereof for the account of Tenant without
termination, Landlord may at any time thereafter, upon written notice to Tenant,
elect to terminate this Lease or pursue any other remedy available to Landlord
for Tenant's previous breach of or default under this Lease; and
c) Landlord may, without re-entering, retaking or resuming possession
of the Premises, sue for all rents, including Base Rent and Additional Rent, and
all other sums, charges, payments, costs and expenses due from Tenant to
Landlord hereunder, either: (i) as they become due under this Lease, or (ii) at
Landlord's option, Landlord may accelerate the maturity and due date of the
whole or any part of Base Rent and Additional Rent for the entire then-remaining
unexpired balance of the term of this Lease, as well as all other sums, charges,
payments, costs and expenses required to be paid by Tenant to Landlord
hereunder, including, without limitation, damages for breach or default of
Tenant's obligations hereunder in existence at the time of such acceleration,
such that all sums due and payable under this Lease shall, following such
acceleration, be treated as being and, in fact, be due and payable in advance as
of the date of such acceleration. For purposes of determining the total amount
due from Tenant to Landlord upon any such acceleration, Base Rent and Additional
Rent shall each be treated as being subject to increase in each remaining Lease
Year of the entire then remaining balance of the Lease Term at the rate of five
percent (5%) per year. However, all accelerated sums due from Tenant to Landlord
pursuant to the foregoing provisions of this subparagraph (c) shall be subject
to adjustment to the then-present value of such accelerated sums at the time of
their actual payment by Tenant to Landlord based upon an eight percent (8%)
discount rate, which discount rate is agreed upon by, and acceptable to, each
party hereto as evidenced by each party's execution of this Lease. Landlord may
recover and collect all such unpaid rents and other sums so sued by Tenant by
distress, levy, execution or otherwise. IF LANDLORD SHALL INVOKE AND EXERCISE
EITHER OF THE REMEDIES PROVIDED IN THIS SUBPARAGRAPH (c), THEN SHOULD TENANT
VACATE THE PREMISES AND ADVISE LANDLORD IN WRITING OF SUCH VACATING, LANDLORD
SHALL, IF THERE SHALL BE NO OTHER VACANT SPACE OF COMPARABLE SIZE TO EITHER THE
GROUND FLOOR SPACE OR THE SEVENTH FLOOR SPACE OR FROM WHICH SUCH COMPARABLE SIZE
SPACE COULD BE PRACTICALLY DESIGNED AND CREATED, IN GOOD FAITH ATTEMPT TO LEASE
THE PREMISES OR PORTIONS THEREOF AT THE THEN MARKET RATE FOR SIMILAR SPACE IN
THE BUILDING AS PROVIDED AND TO THE SAME EFFECT AS STATED IN SUBPARAGRAPH (b) IN
THIS SECTION 18.2. ANY SUCH ATTEMPT BY LANDLORD TO LET THE PREMISES OR ANY
PROTION THEOF, SHALL NOT CONSTITUTE THE ACCEPTANCE OF A SURRENDER OF THE
PREMISES, OR ANY PORTION THEREOF, NOR THE TERMINATION OF THIS LEASE.
18.3 ADDITIONAL REMEDIES. Except as expressly otherwise provided herein
in addition to the remedies hereinabove specified and enumerated in Section 18.2
Landlord shall have the right of injunction and shall have and may exercise the
right to invoke any other remedies allowed at law or in equity as if the
remedies or re-entry, unlawful detainer proceedings and other remedies were not
herein provided. Accordingly, the mention in this Lease of any particular remedy
shall not preclude Landlord from having or exercising any other remedy set
further in this lease or at law as in equity. Nothing herein contained shall be
construed as precluding the Landlord from having or exercising such lawful
remedies as may be and become necessary in order to preserve the Landlord's
right or the interest of the Landlord in the Premises and in this Lease, even
before the expiration of the notice periods provided for in this
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Lease, if under the particular circumstances then existing the allowance of such
notice periods will prejudice or will endanger the rights and estate of the
Landlord in this Lease and in the Premises.
18.4. NO WAIVER. If Landlord or Tenant shall institute proceedings
against the other and a compromise or settlement thereof shall be made except as
expressly provided in such compromise or settlement, the same shall not
constitute a waiver of the same or of any other covenant, condition or agreement
set forth herein, nor any of Landlord's rights hereunder. Neither the payment by
Tenant of a lesser amount than the installments of Base Rent, Additional Rent or
of any sums due hereunder nor any endorsement or statement on any check or
letter accompanying a check for payment of rent or other sums payable hereunder
shall be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
rent or other sums or to pursue any other remedy available to Landlord. No
re-entry by Landlord, and no acceptance by Landlord of keys from Tenant, shall
be considered an acceptance of a surrender of this Lease except to the extent
expressly so acknowledged by Landlord in writing.
18.5 LANDLORD MAY CURE TENANT'S DEFAULTS. If Tenant defaults in the
making of any payment or in the doing of any act herein required to be made or
done by Tenant beyond applicable notice and cure periods, then Landlord may, but
shall not be required to, make such payment or do such act. If Landlord elects
to make such payment or do such act, all costs and expenses incurred by
Landlord, plus interest thereon at the highest rate allowable under the laws of
the State of Florida from the date paid by Landlord to the date of payment
thereof by Tenant, shall be immediately paid by Tenant to Landlord within then
(10) days after written notice; provided however, that nothing contained herein
shall be construed as permitting Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. The taking of such action
by Landlord shall not be considered as a cure of such default by Tenant or bar
Landlord from pursuing any remedy to which it is otherwise entitled on account
of such default.
18.6 LANDLORD'S LIEN. LANDLORD HEREBY WAIVES AND RELINQUISHES THE
STATUTORY LIEN WHICH LANDLORD WOULD OTHERWISE HAVE UNDER THE FLORIDA STATUTES
UPON THE PROPERTY OF TENANT. HOWEVER, NO PARTY OWNING OR HOLDING A SECURITY
INTEREST IN TENANT'S PROPERTY SHALL HAVE THE RIGHT TO HOLD A COLLATERAL SALE OF
SUCH PROPERTY IN THE PREMISES OR IN THE OFFICE COMPLEX AND SHALL NOT BE ENTITLED
TO REMOVE FROM THE PREMISES ANY SUCH PROPERTY EXCEPT AFTER NORMAL BUSINESS HOURS
OF THE OFFICE COMPLEX NOR WITHOUT ASSUMING IN WRITING LIABILITY AND
RESPONSIBILITY FOR ANY DAMAGE DONE TO THE PREMISES OR THE OFFICE COMPLEX IN THE
PROCESS OF ANY SUCH REMOVAL AND IF REASONABLY REQUIRED BY LANDLORD, DEPOSITING
REASONABLY ADEQUATE SECURITY TO RESTORE AND REPAIR ANY SUCH DAMAGES. THE
PROVISIONS OF THIS SUBPARAGRAPH SHALL BE INCORPORATED IN ANY INSTRUMENT GRANTING
A SECURITY INTEREST IN TENANT'S PROPERTY IN THE PREMISES.
ARTICLE XIX
SUBORDINATION, ATTORNMENT AND QUIET ENJOYMENT
19.1 SUBORDINATION. Provided the holder of any mortgage or mortgages or
ground leases, if any, now or hereafter in force and effect upon or encumbering
any or all, or any combination, of the Premises and the Office Complex, or any
extensions, renewals, consolidations and replacements of, and all amendments and
supplements to any such mortgage(s) or ground lease(s) (collectively and
severally referred to as "Mortgage") shall agree that so long as Tenant is not
in default beyond applicable notice and cure periods under this Lease, Tenant's
possession of the Premises and substantive rights (other than remedies against
acts of prior landlord), shall not be disturbed; this Lease, Tenant's interest
hereunder and Tenant's leasehold interest and to the Premises, are hereby agreed
by Tenant to be and are hereby made junior, inferior, subordinate and subject in
right, title, interest, lien, encumbrance, priority, and all other respects to
any mortgage or mortgages now or hereafter in force and effect upon or
encumbering any or all, or any combination, of the Premises and the Office
Complex, or any parts thereof, and to all future modifications, extensions,
renewals, consolidations and replacements of, and all amendments and supplements
to any such mortgage or morgages, and upon recording any of such
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mortgage or mortgages, the same shall be deemed to be prior in dignity, lien and
encumbrance of this Lease, Tenant's interest hereunder and Tenant's leasehold
interest in and to the Premises irrespective of the dates of execution, delivery
or recordation of any such mortgage or mortgages. The foregoing subordination
provisions of this Section shall be automatic and self-operative without the
necessity of the execution of any further instrument or subordination on the
part of Tenant. However, Tenant agrees to executive and deliver, not later than
twenty (20) days after receipt of a written request therefore from Landlord or
the holder or proposed holder of any mortgage, any further instrument or
agreement of subordination of this Lease, Tenant's interest hereunder or
Tenant's leasehold interest in the Premises to any such mortgage or mortgages in
confirmation or furtherance of or in addition to the foregoing subordination
provisions of this Section. Failure to do so by Tenant shall, at Landlord's
option, constitute a default by Tenant under this Lease and Landlord shall be
entitled thereupon to exercise any and all remedies available to Landlord
pursuant to this Lease or otherwise provided by law, including, without
limitation, the cancellation and termination of this Lease without incurring any
liability to Tenant on account thereof. The provisions of this Section are
material considerations for an inducement of the execution of this Lease by
Landlord and its demise of the Premises to Tenant. Accordingly, any breach or
default by Tenant of its covenants and obligations hereunder shall be deemed to
be and constitute a material and substantial breach and default of this Lease by
Tenant.
19.2 ATTORNMENT. Tenant shall and hereby agrees to attorn, and be bound
under all of the terms, provisions, covenants and conditions of this Lease, to
any successor of the interest of Landlord under this Lease for the balance of
the term of this Lease remaining at the time of the succession of such interest
of such successor so long as such successor assumes in writing all of Landlord's
obligations accruing hereunder from and after acquiring the interest of
Landlord. In particular, in the event that any proceedings are brought for the
foreclosure of any mortgage encumbering, any of all, or a portion of, the
Premises and the Office Complex, Tenant shall attorn to the purchaser at any
such foreclosure sale and recognize such purchaser of Landlord under this Lease,
subject, however, to all of the terms and conditions of this Lease. Tenant
agrees that neither the purchaser at such foreclosure sale nor the foreclosing
mortgagee shall have liability for any act or omission of Landlord (except for
obligations of Landlord of a continuing nature and then only to the extent
accruing from and after acquiring the interest of Landlord), be subject to any
offsets or defenses which Tenant may have as claim against Landlord, or be bound
by any advance rents which may have been paid by Tenant to Landlord for more
than the current period in which such rents come due.
19.3 QUIET ENJOYMENT. Tenant, upon paying the minimum rent, additional
rent and other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be kept, shall
quietly have and enjoy the Premises during the Lease Term without hindrance or
molestation by anyone claiming by or through Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease. Landlord hereby reserves
the right to prescribe, at its sole discretion, reasonable rules and regulations
(herein called the "Rules and Regulations") having uniform applicability to all
similarly situated tenants of the Building and governing the use and enjoyment
of the Premises and the remainder of the Property; provided that the Rules and
Regulations shall not materially interfere with Tenant's use and enjoyment of
the Premises in accordance with the provisions of this Lease for the permitted
uses. Tenant shall adhere to the Rules and Regulations and shall cause its
agents, employees, invitees, visitors and guests to do so. A copy of the Rules
and Regulations in affect on the date hereof is attached hereto as Exhibit "E".
ARTICLE XX
END OF TERM
20.1 SURRENDER OF PREMISES. Upon the expiration or other termination of
the Lease Term, Tenant shall surrender the Premises, broom clean, in the same
order and condition in which they are in on the Lease Commencement Date,
ordinary wear and tear and damage by casualty excepted. All improvements to the
Premises or the Office Complex made by either party shall remain upon and be
surrendered with the Premises as a part thereof at the end of the Lease term,
except that if Tenant is not in default under this Lease, Tenant shall have the
right to remove, prior to the expiration of the Lease Term, all movable
furniture, furnishing and equipment installed in the Premises solely at the
expense of Tenant. All damage and injury to the Premises or the Office Complex
caused by such removal shall be repaired by Tenant, at Tenant's sole expense,
or, at the Landlord's option, Landlord may repair such damage at Tenant's
expense, which shall be repaid to Landlord upon ten (10) days written demand. If
such property of Tenant is not removed by Tenant prior to the expiration or
termination of this Lease, the same shall become the property of Landlord and
shall be surrendered with the Premises as a part thereof. Notwithstanding any
covenant or condition of this Article to the contrary, however, Landlord may
require, in its sole discretion, that any or all improvements made by or on
behalf of Tenant (other than Tenant Improvement Work) within or upon the
Premises be removed upon the termination of this Lease, or upon the default by
Tenant, and Tenant hereby agrees to cause same to be removed and the Premises to
be restored, at Tenant's sole cost and expense, or, at Landlord's option,
Landlord may remove and restore the same at Tenant's expense, which shall be
repaid to Landlord upon ten (10) days written demand, together with any and all
damages Landlord may suffer or sustain by reason of the failure of Tenant to
remove the same. Notwithstanding anything to the contrary contained in this
Section 20.1, Landlord may not require Tenant to remove any; (a) improvements
installed by Landlord
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prior to the Commencement Date of this Lease; or (b) items approved by Landlord
as part of the initial buildout of the Premises (whether installed by Landlord
or Tenant); or (c) Alterations made to the Premises after the Commencement Date,
unless Landlord, simultaneously with and as part of its review of the plans and
specifications therefor, has expressly advised Tenant in writing that the
applicable alteration will not need to be removed by Tenant upon the expiration
or earlier termination of this Lease.
20.2 HOLDING OVER. If Tenant or any other person or party shall remain
the possession of the Premises or any part thereof following the expiration of
the term or earlier termination of this Lease without an agreement in writing
between Landlord and Tenant with respect thereto, the person or party remaining
in possession shall be deemed to be a tenant at sufferance, and during any such
holdover, the rents and other amounts payable under this Lease by such tenant at
sufferance shall be double 150% OF THE RATE OR RATES IN EFFECT IMMEDIATELY PRIOR
TO THE EXPIRATION OF THE TERM OR EARLIER TERMINATION OF THIS LEASE AND TENANT
AND ANY SUCH TENANT AT SUFFERANCE SHALL PAY LANDLORD AND BE LIABLE FOR ANY AND
ALL DAMAGES THAT LANDLORD MAY SUFFER ON ACCOUNT OF THE FAILURE TO SURRENDER
POSSESSION OF THE PREMISES, AND SAID TENANT AND TENANT AT SUFFERANCE DO JOINTLY
AND SEVERALLY HEREBY AGREE TO INDEMNIFY AND SAVE LANDLORD HARMLESS FROM AND
AGAINST ALL CLAIMS MADE BY ANY SUCCEEDING TENANT OF THE PREMISES (OR ANY PART
THEREOF) AGAINST LANDLORD ON ACCOUNT OF DELAY BY LANDLORD IN DELIVERING
POSSESSION OF THE PREMISES TO THE SUCCEEDING TENANT. In no event, however, shall
such holding over be deemed or construed to be or constitute a renewal or
extension of this Lease OR AN AGREEMENT BY LANDLORD TO PERMIT SUCH HOLDING OVER,
IT BEING RECOGNIZED AND ACKNOWLEDGED BY TENANT THAT SUCH HOLDING OVER IS A
DEFAULT BY TENANT UNDER THIS LEASE.
ARTICLE XXI
PARKING
21.1 PARKING, GENERALLY. DURING the Lease Term Landlord may make
available to Tenant monthly parking permits for the parking of passenger
automobiles in those parking areas designated by Landlord in the Parking Garage
for tenants and invitees of the Office Complex (the "Parking Areas" in an amount
not to exceed two point five (2.5) parking spaces for each one thousand (1,000)
square feet of rentable area in the Premises. The charge is $45.00 per month for
unassigned spaces for the initial year and market rates thereafter.
Notwithstanding the foregoing, Landlord does not guarantee the availability of
monthly parking permits to Tenant following the First Lease Year if and to the
extent that Tenant does not purchase Tenant's full allotment of such monthly
parking permits during the First Lease Year.
21.2 NO SPECIFIED SPACES. The Parking Garage will be operated on a
non-exclusive self-parking basis. No specified parking spaces within the Parking
Areas will be allocated for use by Tenant. Each user of the Parking Areas will
have the right to park in any available stall or space on a first come-first
served basis, unless such space is specifically designated or reserved by
Landlord or designated for handicapped parking.
21.3 PARKING GARAGE RULES. Tenant and its employees shall observe
reasonable safety precautions in the use of the Parking Garage and shall at all
times abides by all reasonable rules and regulations from time to time
promulgated by Landlord or the Parking Garage operator governing this size of
permitted automobiles in the Parking Garage and the general use of the Parking
Garage, including the requirement that an identification or parking sticker
shall be displayed at all times in all cars parked in the Parking Garage. Any
car not displaying such a sticker, if so required, may be towed away at the car
owner's expense.
21.4 PARKING GARAGE HOURS. The Parking Garage will remain open during
the normal hours of operation of the Office Complex.
21.5 NO LIABILITY OF LANDLORD. Except to the extent caused by the gross
negligence or willful misconduct of Landlord or its employees or agents,
Landlord does not assume any responsibility for, and shall not be held liable
for, any damage or loss to any automobiles or other vehicles parked in the
Parking Garage or to any personal property located therein, or for any injury
sustained by any person in or about the Parking Garage.
ARTICLE XXII
RELOCATION OF TENANT
22.1 RELOCATION. Recognizing that the Building is large and needs of
tenants as to space may vary from time to time, and in order for Landlord to
accommodate Tenant and prospective tenants, Landlord expressly reserves the
right, prior to and/or during the Lease Term, at Landlord's sole expense, to
move Tenant AFTER THE TWENTY FOUR (24TH) MONTH OF THE LEASE TERM from the
Premises and relocate Tenant in other comparable space of Landlord's choosing of
approximately the same dimensions, size AND VIEW ON THE SAME FLOOR OR HIGHER
within the Building, which other space will be decorated by Landlord at its
expense. Landlord may use decorations and materials from the existing Premises,
or other materials, so that the space in which Tenant is relocated will be
comparable in its interior design and decoration to the space from which Tenant
is removed.
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22.2 NO INTERFERENCE. During the relocation period Landlord will use
reasonable efforts not to unduly interfere with Tenant's business activities and
Landlord agrees to substantially complete the relocation within a reasonable
time under all then existing circumstances.
22.3 ACKNOWLEDGMENT AND CONFIRMATION. This Lease and each of its terms
and conditions will remain in full force and effect and be applicable to any
such new space and such new space will be deemed to be the Premises demised
hereunder; upon request Tenant will execute such documents which may be
requested to evidence, acknowledge and confirm the relocation (but it will be
effective even in the absence of such confirmation).
22.3 EXPENSE OF RELOCATION. Landlord's obligation for expenses of
removal relocation will be the actual cost of relocating decorating Tenant's new
space, and Tenant agrees that Landlord's exercise of its election to remove and
relocate Tenant will not release Tenant in whole or in part from its obligations
hereunder for the full Lease Term. No rights granted in this Lease to Tenant,
including the right or peaceful possession and quiet enjoyment, will be deemed
breached or interfered with by reason of Landlord's exercise of the relocation
right reserved herein.
22.5 NOTICE TO TENANT. If Landlord exercises its relocation right under
this paragraph, (i)Tenant will be given thirty (30) days prior notice in
writing, (ii) Landlord will reimburse Tenant for the reasonable cost of
replacement of stationary and telephone relocation and other similar expense
necessitated by the exercise of said right of relocation.
ARTICLE XXIII
GENERAL PROVISIONS
23.1 ENTIRE AGREEMENT; MODIFICATION. This Lease and Exhibits "A" - "G"
attached hereto contain and embody the entire agreement of the parties hereto
and supersede all prior agreements, negotiations and discussion between the
parties hereto. Any representation, inducement or agreement that is not
contained in this Lease shall not be of any force or effect, and no rights,
privileges, easements or licenses are being or shall be acquired by Tenant
except as expressly set forth herein. Tenant hereby waives, as a material part
of the consideration hereof, all claims against Landlord for recision, damages
or any other form or relief by reason of any alleged covenant, warranty,
representation, agreement or understanding not contained in this Lease. This
Lease may not be modified or changed in whole or in part in any manner other
than by instrument in writing duly signed by both parties hereto. This Lease
being executed in multiple counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same document.
23.2 NO PARTNERSHIP. Nothing contained in this Lease shall be construed
as creating a partnership or joint venture of or between Landlord and Tenant, or
to create any other relationship between the parties hereto other than that of
Landlord and Tenant.
23.3 DETERMINATION OF RENTABLE AREA. The rentable area in the Office
Complex and in the Premises is determined in accordance with the Building
Standard method of office space calculation.
23.4 BROKERS. Landlord recognizes American Ventures Realty Corporation
as the sole broker procuring this Lease and shall pay said broker a commission
pursuant to a separate agreement between said broker and Landlord. Landlord and
Tenant each represent and warrant to the other that, except as provided above,
neither of them has employed or dealt with any broker, agent or finder in
carrying on the negotiations relating to this Lease. Tenant shall indemnify and
hold Landlord harmless from and against any claim or claims for brokerage or
other commissions asserted by any broker, agent or finder engaged by Tenant or
with whom Tenant has dealt, other than the broker named in the first sentence of
this Section.
23.5 ESTOPPEL CERTIFICATES. Tenant shall, at any time from time to
time, not less than twenty (20) days after written request from Landlord,
execute, acknowledged and deliver to Landlord an estoppel certificate in writing
certifying (a) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified and stating the modifications); (b) the dates to which the rent and
other charges hereunder have been paid by Tenant; (c) that Tenant is not in
default in the payment of rent or any additional charges to Landlord or in the
performance of any of Tenant's obligations hereunder, or, if in default, stating
such default; (d) whether or not, to the best knowledge of Tenant, Landlord is
in default in the performance of any covenant, agreement or condition contained
in this Lease, and if so, specifying the nature of such default; (e) that so far
as Tenant knows, no event has occurred which authorizes, or with the lapse of
time will authorize, Landlord or Tenant to terminate this Lease or, if such
event has occurred, stating such event; (f) that so far as Tenant knows, neither
party has any such offsets, counterclaims or defenses or, if either party has
any such offsets, counterclaims or defenses, stating them; (g) the address to
which notices to Tenant are to be sent, and (h) any other factual matters with
regard to this lease which may be reasonably requested by Landlord.
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Landlord may, at its option, from to time to time prepare and submit to Tenant
for its execution an estoppel certificate setting forth those matters specified
in this Section, in substantially the same form as the form of estoppel
certificate attached hereto as Exhibit "F" (the "Form Estoppel Certificate"). If
Tenant fails to return to Landlord an executed estoppel certificate within
fifteen (15) days after receipt from Landlord of the completed Form Estoppel
Certificate, then Tenant shall be deemed to have certified, agreed to and
accepted the terms and provisions of such completed Form Estoppel Certificate,
and all statements and certifications set for the therein shall be and become
binding upon Tenant as if Tenant had fully and properly executed and delivered
such completed Form Estoppel Certificate within the time provided therefor.
Any such certificate delivered by Tenant may be relied upon by any owner of the
Office Complex or the Land, any prospective purchaser of the Office Complex or
the Land, any mortgagee or prospective mortgagee of the Office Complex or the
Land, or any prospective assignee of any such mortgagee.
23.6 WAIVER OF JURY TRIAL. Landlord and Tenant each hereby waive trial
by jury in any action, proceeding or counterclaim brought by either of them
against the other in connection with any matter arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenant's use or occupancy of the Premises, and/or any claim or injury or damage.
23.7 WAIVER OF RIGHT OF REDEMPTION. Tenant, for itself and for all
persons claiming by, through or under it, hereby expressly waives any and all
rights which are or may be conferred upon Tenant by any present or future law to
redeem the Premises.
23.8 VENUE. The venue of any suit or proceeding brought for the
enforcement of or otherwise with respect to this Lease shall always be lodged in
the State Courts of the Eleventh Judicial Circuit in and for Dade County,
Florida regardless of whether, under any applicable principle of law, venue may
also be properly lodged in the courts of any other Federal, State or County
jurisdiction.
23.9 NOTICES. All notices or other communications required hereunder
shall be in writing and shall be deemed duly given on the date delivered, if in
person (with receipt therefor), or three (3) days following posting with the
United States Mail, if sent by certified or registered mail, return receipt
requested, postage prepaid, to the following address: (i) If to Landlord at 255
Alhambra Circle, Suite 1100, Coral Gables, Florida 33134; (ii) if to Tenant, at
the Premises, notices to Tenant shall also be sent to the attention of
Mr.Charles W. Mineo, Vice President, and in a separate envelope to Mr. Larry
Petersen, Chief Financial Officer & Sr. Vice President. Either party may change
its address for the giving of notices by notice given in accordance with this
Section. Any notice mailed to the last designated address of any person or party
to which a notice may be or is required to be delivered pursuant to this Lease
shall not be deemed ineffective if actual delivery cannot be made due to a
change of address of the person or party to which the notice is directed or the
failure or refusal of such person to accept delivery to the notice.
23.10 RULES OF CONSTRUCTION. If any provision of this Lease or the
application thereof to any person or circumstances shall to be any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be effected thereby, and each provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
Feminine or neuter pronouns shall be substituted for those of the masculine
form, and the plural shall be substituted for the singular number, in any place
or places herein in which the context may require such substitution. Article and
section headings are use herein for the convenience of reference and shall not
be considered when construing or interpreting this Lease.
23.11 SUCCESSORS AND ASSIGNS. The provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, successors and assigns, subject to the
provisions hereof restricting assignment, transfer or subletting by Tenant.
23.12 WAIVER. No release, discharge or waiver of any provision hereof
shall be enforceable against or binding upon Landlord or Tenant unless in
writing and executed by Landlord or Tenant, as the case may be. Neither the
failure of Landlord or Tenant to insist upon a strict performance of any of the
terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of rent by Landlord with knowledge of a breach of this Lease by
Tenant in the performance of its obligations hereunder, shall be deemed a waiver
of any rights or remedies that Landlord or Tenant may have or a waiver of any
subsequent breach or default in any of such terms, provisions, covenants,
agreements and conditions.
23.12(a) LANDLORD'S CONSENT OR APPROVAL. Whenever Landlord's consent or
approval is permitted or required under this Lease, except as expressly
otherwise provided herein, Landlord's consent or approval shall not be
unreasonably withheld or delayed.
23.13 COSTS AND ATTORNEYS' FEES. If either party shall bring an action
to recover any sum due hereunder, the court may award to the prevailing party
its reasonable costs and reasonable attorneys' fees, specifically including
reasonable attorneys' fees incurred in connection with any appeals, whether or
not taxable as such by law.
23.14 TIME OF THE ESSENCE. Time is of the essence of each provision of
this Lease.
Page 24
<PAGE>
23.15 GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Florida.
23.16 NO RECORDING. This Lease shall not be recorded.
23.17 RADON GAS NOTIFICATION. In accordance with the requirements of
Florida Statues Section 404.56(8) the following notice is hereby given:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your County Public Health Unit.
23.18 EFFECTIVE DATE. Submission of this instrument for examination
does not constitute an offer, right of first refusal, reservation or of option
for the Premises, or any other space or Premises in or about the Building or
Office Complex. This instrument shall be binding upon the parties hereto only
upon the execution and delivery by the party to be bound and this instrument
shall become effective as a lease only upon the execution and delivery by both
Landlord and Tenant.
23.19(a) AUTHORITY. Landlord and Tenant and each of the individuals who
are signatories on behalf of Landlord and Tenant warrant that all consents or
approvals required of third parties (including, but not limited to, the offices
and directors of Landlord and Tenant) for the execution, delivery, and
performance of this Lease have been obtained and that Landlord and Tenant have
the right and authority to enter into and perform their covenants contained in
this Lease.
ARTICLE XXIV
RENEWAL OPTIONS
24.1 GRANT OF RENEWAL OPTIONS. PROVIDED THAT: (A) TENANT IS NOT IN
DEFAULT UNDER ANY OF THE MONETARY OR MATERIAL NON-MONETARY TERMS AND CONDITIONS
OF THIS LEASE ON THE DATE OF EXERCISE OF EITHER RENEWAL OPTION, AND (B) TENANT
GIVES THE "RENEWAL NOTICE" (AS DEFINED IN SECTION 24.2 HEREOF) TO LANDLORD IN A
PROPER AND TIMELY FASHION; TENANT (BUT NOT SUBTENANT OR ASSIGNEE) SHALL HAVE THE
OPTION (THE "RENEWAL OPTION(S)") TO RENEW THIS LEASE FOR TWO (2) ADDITIONAL
SUCCESSIVE TERMS OF FIVE (5) YEARS EACH (THE "RENEWAL TERMS(S)" AND/OR THE
"FIRST RENEWAL TERM" AND "SECOND RENEWAL TERM", RESPECTIVELY), WITH THE FIRST
RENEWAL TERM COMMENCING IMMEDIATELY AFTER THE EXPIRATION OF THE INITIAL TERM.
24.2 EXERCISE OF RENEWAL OPTIONS(S). IN ORDER TO EXERCISE EITHER
RENEWAL OPTION, TENANT MUST GIVE LANDLORD WRITTEN NOTICE ("RENEWAL NOTICE") OF
ITS EXERCISE OF SUCH RENEWAL OPTION NOT LESS THAN 220 DAYS PRIOR TO THE
EXPIRATION OF THE INITIAL TERM OR THE FIRST RENEWAL TERM, AS THE CASE MAY BE. IN
THE EVENT TENANT FAILS TO DELIVER THE RENEWAL NOTICE TO LANDLORD AS SPECIFIED
ABOVE, OR TENANT IS OTHERWISE NOT PERMITTED TO EXERCISE ANY RENEWAL OPTION UNDER
THIS LEASE, THEN ANY REMAINING RENEWAL OPTIONS(S) SHALL TERMINATE AND BE NULL
AND VOID AND THIS LEASE SHALL EXPIRE ON THE EXPIRATION DATE OF THE THEN EXISTING
INITIAL TERM OR RENEWAL TERM, AS THE CASE MAY BE.
24.3 TERMS OF THE LEASE DURING RENEWAL TERM(S). DURING EACH RENEWAL
TERM, ALL THE TERMS, CONDITIONS AND PROVISIONS OF THIS LEASE SHALL CONTINUE IN
FULL FORCE AND EFFECT EXCEPT: (A) THERE SHALL BE NO ADDITIONAL RENEWAL TERMS(S)
OTHER THAN THE RENEWAL TERMS SET FORTH ABOVE; (B) LANDLORD SHALL NOT BE
OBLIGATED TO PERFORM ANY ADDITIONAL TENANT IMPROVEMENT WORK AND PROVISIONS OF
THIS LEASE CONCERNING ANY LANDLORD BUILDOUT OBLIGATIONS, TENANT IMPROVEMENTS
ALLOWANCES, FREE RENT, CONCESSIONS, MOVING ALLOWANCES AND SIMILAR CREDITS, IF
ANY, SHALL NOT APPLY: (C) THE "BASE RENT" SHALL, FOR THE FIRST LEASE YEAR OF
EACH RENEWAL TERM BE EQUAL TO "FAIR MARKET RENTAL RATE" (AS DEFINED IN SECTION
24.4 HEREOF) FOR THE PREMISES, WHICH FAIR MARKET RENTAL RATE SHALL INCLUDE,
WITHOUT LIMITATION, INCREASES IN BASE RENT, IF ANY, DURING EACH YEAR OF EACH
RENEWAL TERM AS MAY THEN BE CONSIDERED PREVAILING, AS WELL AS THE THEN EXISTING
BASIC COST AS A PORTION OF BASE RENT, WITH THE UNDERSTANDING THAT TENANT'S SHARE
OF INCREASE IN BASIC COST OCCURRING THEREAFTER WILL BE PAID BY TENANT TO
LANDLORD AS ADDITIONAL RENT. THE INITIAL BASIC COST IN SECTION 3.4 OF THIS LEASE
SHALL BE DEEMED TO BE THE BASIC COSTS FOR THE CALENDAR YEAR IN WHICH THE
APPLICABLE RENEWAL TERM COMMENCES.
24.4 FAIR MARKET RENTAL RATE. "FAIR MARKET RENTAL RATE" SHALL BE
DETERMINED AS PROVIDED IN THIS SECTION 24.4. AT LEAST 220 DAYS PRIOR TO THE
EXPIRATION OF THE INITIAL TERM OF THE FIRST RENEWAL TERM, AS THE CASE MAY BE, AT
TENANT'S WRITTEN REQUEST LANDLORD SHALL NOTIFY ("RENTAL NOTICE") TENANT, IN
WRITING, OF ITS GOOD FAITH DETERMINATION OF THE PER SQUARE FOOT RENTAL RATE
(INCLUDING INCREASES, IF ANY, IN BASE RENT DURING EACH YEAR) A TENANT TAKING
SIMILAR SIZE SPACE IN SUCH MARKET WOULD, AT THAT TIME, PAY AS RENT, IF ANY, RENT
THAT MAY BE CUSTOMARY FOR THE PREMISES OR SPACE COMPARABLE THERETO IN A
COMPARABLE BUILDING IN CORAL GABLES, FLORIDA ("FAIR MARKET RENTAL RATE"). TENANT
WILL HAVE FIFTEEN (15) DAYS AFTER RECEIPT OF THE RENTAL NOTICE TO NOTIFY
LANDLORD, IN WRITING, IF TENANT DISAGREES WITH THE FAIR MARKET RENTAL RATE SET
FORTH IN THE RENTAL NOTICE. IF TENANT FAILS TO TIMELY NOTIFY LANDLORD, IN
WRITING, TENANT SHALL BE DEEMED TO HAVE ACCEPTED THE FAIR MARKET RATE SET FORTH
IN THE RENTAL NOTICE. IF TENANT TIMELY NOTIFIED LANDLORD THAT IT DISAGREES WITH
THE FAIR MARKET RENTAL RATA SET FORTH IN THE
Page 25
<PAGE>
RENTAL NOTICE, TENANT AND LANDLORD SHALL EACH NOTIFY THE OTHER WITHIN TEN (10)
DAYS FOLLOWING TENANT'S NOTICE OF AN ARBITRATOR WITH A MINIMUM OF TEN (10)
YEARS' EXPERIENCE AS AN MIA APPRAISER IN DADE COUNTY, FLORIDA. THE TWO
ARBITRATORS SO SELECTED SHALL THEN PROMPTLY SELECT A THIRD ARBITRATOR, ALSO WITH
TEN (10) YEARS EXPERIENCE AS AN MIA APPRAISER AND THE THREE ARBITRATORS, WITHIN
NO MORE THAN FIFTEEN (15) DAYS, SHALL DETERMINE THE FINAL FAIR MARKET RENTAL
RATE (BASED ON THE PARAMETERS DESCRIBED ABOVE) AND NOTIFY BOTH OF THE PARTIES OF
THE DECISION, IN WRITING, WITH THE MAJORITY OF THE ARBITRATORS DECIDING. IF ANY
PARTY FAILS TO TIMELY SELECT AN ARBITRATOR, THEN THE ONE ARBITRATOR TIMELY
SELECTED SHALL FINALLY DETERMINE THE FAIR MARKET RENTAL RATE. THE COST OF
ARBITRATION WILL BE SHARED EQUALLY BETWEEN LANDLORD AND TENANT.
IN WITNESS WHEREOF, the undersigned Guarantor(s) has or have, as the case may be
caused these presents to be executed on this 20th day of July, 1996.
Signed, sealed and delivered LANDLORD:
in the presence of: Blumberg/Alhambra Partners,
a Florida general partnership
By: American Ventures Property Fund-1, Ltd.
a Florida general partnership as
[ILLEGIBLE] General Partner
- -------------------------------
By: AVRA - GPI, Inc.
a Florida corporation as General Partner
[ILLEGIBLE]
- ------------------------------- By: /s/ Philip F. Blumberg
---------------------------------------
Philip F. Blumberg, President
WITNESS: TENANT:
Sunglass Hut International, Inc.
a Florida corporation
[ILLEGIBLE]
- ------------------------------- By: /s/ Jack Chadsey
---------------------------------------
Jack Chadsey
/s/ Claudia Black
- ------------------------------- Title: President and CEO
------------------------------------
(CORPORATE SEAL)
Page 26
<PAGE>
EXHIBIT "A"
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
BLUMBER/ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASSHUT INTERNATIONAL, INC.,AS TENANT
DATED JULY, 1996
LEGAL DESCRIPTION OF LAND
Lots, 1,2,3,4,5,6,7,8,9,10,11,12,13,14,35,36,37,38,39,40,41,and 42, together
with Lot 15 less the East 18.21 fee thereof, Block 25, CORAL GABLES, SECTION
"K", according to the plat thereof recorded in Plat Book 8 at Page 33 of the
Public Records of Dade County, Florida.
Initials of:
______________
Landlord
______________
Tenant
Page A-1
<PAGE>
EXHIBIT "B"
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
BLUMBERG/ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASSHUT INTERNATIONAL, INC.,AS TENANT
DATED __________, 1996
FLOOR PLAN
[GRAPHICS OMITTED]
Initials of:
______________
Landlord
______________
Tenant
Page B-1
<PAGE>
EXHIBIT "C"
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
BLUMBER/ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASSHUT INTERNATIONAL, INC.,AS TENANT
DATED JULY, 1996
WORKLETTER
Landlord and Tenant hereby agrees as follows:
1. TENANT IMPROVEMENT WORK. Tenant Acknowledges that it has previously
inspected the Premises and Tenant is accepting the Premises in "As Is"
condition. Tenant further acknowledges that certain improvements presently
exists or serve the Premises, such as elevators, windows, air supply equipment,
fire sprinklers, and stubbing out of electrical and telephone services to the
floor. Tenant agrees that any repair or renovation to any such items or any
equipment in the Premises to restore same to good working order shall be part of
the Tenant Improvement Work. Tenant shall have a space plan ("Space Plan")
prepared by Slack Alvarez Associates, and submitted to Landlord for its written
approval (which approval shall not be unreasonably withheld or delayed); which
Space Plan shall be prepared at Tenant's expense. Tenant shall submit the space
plan to Landlord for its approval on or before thirty (30) days after the date
of this Lease. Landlord shall approve or request revisions to the Space Plan
within five (5) business days after submittal to Landlord and Tenant shall
revise the Space Plan (if so requested by the Landlord) and submit such revised
Space Plant to Landlord for approval as provided above within (10) days after
Landlord so requests.
Tenant shall cause its architect and Martin-Vilato Engineers to
promptly prepare or have prepared "Construction Documents" reflecting the final
architectural and engineering design consisting of working drawings with
detailed plans and specifications substantially in accordance with the approved
Space Plan. The Construction Documents shall be delivered to the Landlord for
its approval which shall not be unreasonably withheld or delayed within ten (10)
days after approval of the Space Plan. The Space Plan and Construction Documents
(including architectural) design, engineering specifications, detailed plans and
specifications, and final working drawings), are collectively and severally
referred to herein as the "Plans". The Plans shall be subject to the review and
reasonable approval of Landlord (provided that any approvals given by Landlord
hereunder shall be for Landlord's benefit only with no other party or person
being entitled to rely thereon). Approval of Plans shall not be unreasonably
withheld or delayed. In the event of a conflict or inconsistency between the
Construction Documents and the Space Plan, the Construction Documents shall
control. Tenant shall cause the approved Contractor who is awarded the job to
Substantially Complete, build out and improve the Premises substantially in
accordance with building standard finishes, together with specified upgrades, as
expressly set forth in the Plans (collectively the "Tenant Improvement Work")
which Tenant Improvement Work shall include without limitation, the following:
(a) Energy efficient electrical lighting with electronic ballasts.
Tenant shall pay for all electrical and other utility meters,
including necessary switchgear, feeders and distribution panels;
(b) Floor covering;
(c) Wall treatment;
(d) Fixtures required by Tenant;
(e) Water lines, if any, required by Tenant, from the central
locations to locations shown in the plans;
(f) Doors, door frames and hardware;
(g) Plumbing facilities, including fixtures required by Tenant;
(h) Equipment and facilities for air conditioning and heating;
(i) Sprinkler system; and
Page C-1
<PAGE>
(j) Drop ceiling
However, all "Shell Improvements" for the Building and Premises have
been constructed and installed by Landlord at it expense. "Shell Improvements"
shall mean the following:
(1) exterior Building windows, walls and roof structure and finished or
unfinished concrete block and sheetrock walls surrounding common area;
(2) unfinished concrete floors and ceilings in their current finished
or unfinished conditions;
(3) fully equipped and finished common areas and service areas,
including exit stairwells, elevators, elevator lobbies, main Building lobby
area, restrooms, and mechanical and electrical rooms.
(4) ventilation, and air-conditioning equipment as exists in Premises;
(5) electrical meter rooms equipped with panels and breakers; and
(6) automatic sprinkler system with construction heads as exists in
Premises.
2. SELECTION OF CONTRACTOR: Promptly following the completion and
approval of the Plans, Tenant shall select a licensed and insured general
contractor, subject to Landlord's approval, which approval shall not be
unreasonably withheld or delayed (the "Approved Contractor") for the
construction of the Tenant Improvement Work in accordance with the approved
Plans.
3. IMPROVEMENT ALLOWANCES: In consideration for Tenant funding all
Tenant Improvement Work, Landlord shall provide abatement of Base Rent in
accordance with the schedule in Article III Section 3.2 of this Lease "Tenant
Improvement Allowance". Tenant agrees that the dollar value of such Tenant
Improvement Allowance shall be used to pay the cost of: (i) the preparation of
the Plans, (ii)obtaining the building permit and Certificate of Occupancy (or
functional equivalent) from the City of Coral Gables, (iii) required demolition;
(iv) the Tenant Improvement Work, and (v) buildout costs including, without
limitation, government impact fees, refurbishing of existing improvements,
decorations, signage and relocations and installation of HVAC system. The above
shall include, without limitation, the purchase and installation of drywall
partitions, ceiling, carpeting, wallcovering, window treatments and energy
efficient and lighting fixtures. The Tenant shall have the right to use any
existing Improvements in the Premises without additional costs and without
deduction from the Improvement Allowance. Any requests by Tenant to modify the
Plan or have any work ("Extra Work") not constituting a part of the Tenant
Improvement Work to be installed in the Premises, shall require Landlord's prior
written approval and any delays occasioned thereby (including, without
limitation, a reasonable time for Landlord to review and approve revised Plans)
shall be "Tenant Delays".
4. MISCELLANEOUS
(a) The Tenant Improvement Work shall be done, in accordance the terms,
conditions, and provisions herein contained.
(b) Except as expressly set forth herein or in the Lease, Landlord has
no obligation to do any work with respect to the Premises.
(c) Except as (and to the Extent) expressly provided in the Lease,
this Workletter shall be deemed applicable to any additional area added to the
original Premises at any time or from time to time, whether by any options under
the Lease or otherwise, or to any portion of the original Premises or any
additions thereto in the event of a renewal or extensions of the original Term
of this Lease, whether by any options under the Lease or otherwise, unless
expressly otherwise provided in the Lease or any riders or supplement thereto.
(d) With respect to any amounts owned by Tenant hereunder and not paid
when due or Tenant's failure to perform its obligations hereunder, Landlord
shall have all the rights and remedies granted to Landlord under the Lease for
non-payment by Tenant of any amounts owed thereunder or failure by Tenant to
perform its obligations thereunder.
(e) Tenant and Tenant's agents shall be permitted to enter the premises
prior to the Commencement Date in order that Tenant may substantially complete
the Tenant Improvements Work and such other work (as approved by Landlord
hereunder) required by Tenant to make the Premises ready for Tenant's use and
occupancy. Such entry prior to Commencement Date is conditioned upon: (a) Tenant
maintaining such insurance as Landlord may reasonably required, and(b) Tenant
and Tenant's agents,
Page C-2
<PAGE>
contractors, workman, mechanics, suppliers and invitees, working in harmony and
not interfering, with Landlord's work, if any, in the Premises or in the
construction of Tenant Improvements or other improvements for other tenants and
occupants of the Building. Tenant agrees that any such entry into and occupation
of the Premises will be deemed to be under all applicable terms, covenants,
conditions and provisions of the Lease except as to the covenant to pay rent,
and further agrees Landlord will not be liable in any way for any injury, loss
or damage which may occur to any of the Tenant's Work and installation made in
the Premises or to any property placed therein prior to the Commencement Date,
the same being of Tenant's sole risk.
(f) Landlord's review and approval of any Plans or other documents
requiring Landlord's approval shall be conducted for Landlord's benefit only and
shall not constitute any representation, implication, warranty or certification
as to the correctness, completeness, accuracy or feasibility of such Plans,
documents or any work, items or systems shown therein or contemplated thereby or
of their compliance with government codes, laws, ordinances, rules, regulations
or other applicable requirements. No warranty (express or implied) is made by
Landlord with respect to the design or suitability if the Tenant Improvement
Work.
(g) Landlord shall provide the freight elevator at no charge to Tenant
for Tenant's move into the Premises. Tenant shall schedule the times for such
elevator use with Landlord.
(h) Promptly upon completion of the Tenant Improvement Work and within
(30) days of Tenant taking occupancy of the Premises, Tenant shall deliver a
complete set of fully executed lien releases and warranty packages from all
suppliers and subcontractors that performed work or supplied materials during
the course of constructing the Premises.
(i) All defined terms in this Work Letter shall have the same meaning
as in the Lease except as otherwise specifically defined herein.
Initials of:
______________
Landlord
______________
Tenant
Page C-3
<PAGE>
EXHIBIT "D"
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
BLUMBERG/ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASS HUT INTERNATIONAL, INC.,AS TENANT
DATED JULY __, 1996
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT, made this _____ day of July, 19__ by and between
Blumberg/Alhambra Partners, a Florida General Partnership ("Landlord") and,
Sunglass Hut International, Inc. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office Space
Lease Agreement, dated July __, 1996 the ("Lease") with respect to the demise of
certain premises (the "Premises"), as more particularly described in the Lease,
and
WHEREAS, all terms defined in the Lease shall have the same meanings
when referred to herein; and
WHEREAS, Landlord and Tenant desire to confirm and acknowledge (i) the
actual Lease Commencement Date, (ii) the commencement of Tenant's obligations
attendant upon such Lease Commencement Date, (iii) the Lease Expiration Date,
and (iv) the actual square footage of the Premises, as described and defined by
the Lease.
NOW, THEREFORE, in consideration of the premises hereof and the mutual
promises and covenants contain herein and in the Lease, Landlord and Tenant
hereby agrees as follows:
1. The Lease Commencement Date Shall be the 1st day of August, 1996 and
the Lease Expiration Date shall be the 31 day of July, 2006. It is understood
and agreed by Landlord and Tenant that any and all of Tenant's covenants and
obligations set forth in the Lease shall become effective as of the said Lease
Commencement Date, including, but not limited to, (i) Tenant's obligatin to pay
Base Rent and Additional Rent, (ii) Tenant's obligation to maintain insurance,
and (iii) all other monetary or non-monetary covenants of Tenant set forth in
the Lease.
2. The number of square feet comprising the Premises in confirmed to be
13,09 square feet, and such number of square feet shall be substituted for the
approximate square footage as set forth in Article I of the Lease, and in each
and every other Article of the Lease wherein reference is made to the
approximately number of square feet compromising the Premises.
EXCEPT as hereby modified and amended, all other terms, provisions,
covenants and conditions of the Lease shall remain unmodified and in full force
and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this First
Amendment to Lease to be executed by their duly authorized representatives on or
as of the day and year above written.
Signed, sealed and delivered LANDLORD:
in the presence of: Blumberg/Alhambra Partners,
a Florida general partnership
By: American Ventures Property Fund-1, Ltd.
a Florida general partnership as
[ILLEGIBLE] General Partner
- -------------------------------
By: AVRA - GPI, Inc.
a Florida corporation as General Partner
[ILLEGIBLE]
- ------------------------------- By: /s/ Philip F. Blumberg
---------------------------------------
Philip F. Blumberg, President
WITNESS: TENANT:
Sunglass Hut International, Inc.
a Florida corporation
[ILLEGIBLE]
- ------------------------------- By: /s/ Jack Chadsey
---------------------------------------
Jack Chadsey
/s/ Claudia Black
- ------------------------------- Title: President and CEO
------------------------------------
(CORPORATE SEAL)
Page D-1
<PAGE>
EXHIBIT "E"
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
BLUMBERG/ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASS HUT INTERNATIONAL, INC.,AS TENANT
DATED JULY, 1996
RULES AND REGULATIONS
The following rules and regulations ("Rules and Regulations") have been
formulated for the safety, comfort and well-being of all tenants of the Office
Complex. Strict adherence to the Rules and Regulations is necessary to guarantee
that each and every tenant will enjoy a safe and undisturbed occupancy of its
premises in the Office Complex. Any continuing violation of the Rules and
Regulations by any tenant shall constitute a default by such tenant under its
Lease. Unless the context otherwise requires, the terms used in this Exhibit
that are defined in the Lease shall have the same meaning as provided in the
Lease.
1. LANDLORD'S RIGHT TO CONTROL, GENERALLY. Landlord shall have the
right to control and operate the public portions of the Office Complex, and the
facilities furnished for the common use of the tenants of the Office Complex, in
such manner as Landlord deems best for the benefit of the tenants generally.
2. USE. The use of its premises by any tenant shall not be changed
without the prior approval of Landlord. No space in the Office Complex shall be
used for the manufacture of goods for sale in the ordinary course of business,
or for the sale at auction of merchandise, good or property of any kind. The
premises shall not, at any time, be used for lodging or sleeping or for any
immoral or illegal purposes.
3. NO OBSTRUCTION. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors, halls and other parts of the Office
Complex not exclusively occupied by any tenant shall not be obstructed or
blocked by any tenant or used for any purposes other than ingress and egress to
and from each tenant's premises. If a tenant's premises are situated on the
ground floor of the Office Complex, the tenant thereof shall, at such tenant's
own expense, keep the sidewalks and curb directly in front of its premises clean
and free from trash and debris. Mats, trash or other objects shall not be placed
in any public corridors of the Office Complex. No tenant shall permit the
congregation of persons in its premises in such numbers or under such conditions
as to interfere with the use and enjoyment of the entrances, corridors,
elevators and other public portions or facilities of the Office Complex by other
tenants. No tenant shall throw anything out of the doors or windows or down the
corridors or stairs of the Office Complex.
4. NO DISTURBANCE. No tenant shall make any unseemly or disturbing
noises or disturb or interfere with the occupants of the Office Complex or
neighboring buildings or premises of those having business with them, whether by
the use of any musical instrument, radio, talking machine, whistling, singing,
or in any other way. No tenant shall construct, maintain, use or operate within
its respective premises any electrical device, wiring or apparatus in connection
with a loudspeaker system or other sound system, except as reasonably required
as part of a communication system approved prior to the installation thereof by
Landlord. No such loudspeaker or sound system shall be constructed, maintained,
used or operated outside the premises. No cooking or heating of food shall be
done or permitted by any tenant on its premises. No tenant shall cause or permit
any unusual or objectionable odors to be produced upon or permeate from its
premises.
5. NO CANVASSING. Canvassing, soliciting and peddling in the Office
Complex is prohibited and each tenant shall cooperate to prevent the same.
6. NO AWNING, ETC. No Awnings or other projections shall be attached to
the outside walls of the Office Complex or to the exterior of any tenant's
premises without the prior written consent of Landlord. No drapes, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of any tenant's premises without the prior written consent of
Landlord. All awnings, projections, curtains, blinds, shades, screens and other
fixtures must be of a quality, type, design and color, and must be attached in
the manner, approved by Landlord. Any drapes in any tenant's premises which are
visible from the exterior of the Office Complex, whether installed by such
tenant or Landlord, must be cleaned by such tenant, at its expense, at lease
once per year without notice from Landlord.
Page E-1
<PAGE>
7. NO SHOWCASES, MARKETING, ETC. No showcases or other articles shall
be put in front of or affixed to any part of the exterior of the Office Complex,
nor placed in the halls, corridors or vestibules without the prior written
consent of the Landlord. There shall be no marking, painting, drilling into or
defacement of the Office Complex or any part of the premises that is visible
from public areas of the Office Complex.
8. RESTROOMS. The restrooms, water and wash closets and other plumbing
fixtures in the Office Complex shall not be used for any purposes other than
those for which they were constructed, and no debris, rubbish, rags or other
foreign substances of any kind shall be disposed of therein. Any damage
resulting from misuse of the restrooms, water and wash closets and other
plumbing fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
9. BICYCLES, ANIMALS. No bicycles or vehicles and no animals, birds or
pets of any kind shall be bought into or kept in or about the Office Complex or
any tenant's premises, except that this rule shall not prohibit the parking of
bicycles or vehicles in the garage in the Office Complex.
10. FLAMMABLE MATERIALS. No flammable combustible or explosive fluid,
chemical or substances shall be brought into or kept upon any tenant's premises.
11. LOCKS. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any tenant, nor shall any changes be made in
any existing locks or the locking mechanism therein without Landlord's prior
written approval. All doors leading to the corridors or main halls shall be kept
closed during business hours excepts as they may be used for ingress or egress.
Each tenant shall, upon the termination of its tenancy, restore to the Landlord
all keys of stores, offices, storage and toilet rooms either furnished to, or
other wide procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to Landlord the replacement cost thereof.
12. THEFT OF LOSS. Each tenant shall be responsible for the protection
and security of its premises and all property therein from robbery, theft,
vandalism, pilferage or other loss. Each tenant, before closing and leaving the
premises at any time, shall see that all windows and doors are closed and locked
and all lights are turned off. Tenant shall furnish Landlord with "after-hours"
emergency telephone numbers, for the sole use of Landlord at its discretion.
Except for emergency purposes, Landlord will use its best efforts to keep such
telephone numbers confidential.
13. FREIGHT, HAND TRUCKS. Landlord reserves the right to inspect all
freight to be brought into the Office Complex and to exclude from the Office
Complex all freight which violates any of these Rules and Regulations or the
Lease. There shall not be used in any tenant's premises, or in any halls or
corridor of the Office Complex, either by any tenant or by any other persons in
the delivery or receipt of merchandise, any hand trucks, except those equipped
with rubber tires and side guards. Each tenant shall be responsible to Landlord
for any loss or damage resulting from any deliveries made by or for such tenant
to the Office Complex.
14. MAINTENANCE OF NONSTANDARD FINISHES. Landlord shall not maintain
any suite finishes which are non-standard, such as kitchens, bathrooms,
wallpaper, special lights, etc. However, should the need arise for repairs of
items not maintained by Landlord, Landlord will arrange for the work to be done
at the expense of the tenant for which the work was performed.
15. LANDLORD'S EMPLOYEES. Landlord's employees shall not perform any
work to do anything outside of their regular duties, unless under special
instruction from the management of the Office Complex. The requirements of
tenants will be attended to only upon application to Landlord, and any such
special requirements shall be billed to the tenant for which work is performed
(and paid by such tenant with its next installment of rent) in accordance with
the schedule of charges maintained by Landlord from time to time or at such
charge as is agreed upon in advance by Landlord and such tenant.
16. LANDLORD'S RESERVED RIGHTS. Landlord reserves the right to exclude
from the Office Complex at all times any person who is not known or does not
properly identify himself to the Office Complex management or watchman on duty.
Landlord may, at its options, require all persons admitted to or leaving the
Office Complex between the hours of 6:00 p.m. and 7:30 a.m., Monday through
Friday, and at any hour on Saturday, Sundays and legal holidays, to register.
Each tenant shall be responsible for all persons for whom it authorizes entry
into the Office Complex, and shall be liable to Landlord for all acts or
omissions of such persons.
17. COMPLIANCE. Tenant shall be responsible for the compliance by its
employees and agents with the foregoing Rules and Regulations, and, with respect
to Tenant's customers, invitees and guests, Tenant shall exercise due diligence
in the enforcement and observations of these Rules and Regulations.
Page E-2
<PAGE>
18. ENFORCEMENT BY LANDLORD. If any Tenant violates or fails to comply
with any of its obligations as set forth in these Rules and Regulations or the
Lease promptly after written notice from Landlord of such violation or
non-compliance, then Landlord or its duly appointed employees, agents or
contractors shall have the right to undertake such acts as may be reasonably
necessary to cure or eliminate such violation or non-compliance at the sole cost
of such Tenant, which cost shall constitute Additional Rent under such Tenant's
lease.
19. WAIVER. No release or waiver by Landlord of any provisions herein
shall be enforceable by the Tenant in whose favor such waiver is granted unless
in writing and executed by Landlord. The failure by Landlord to insist upon the
strict performance of any of the terms or provisions hereof shall not be deemed
a waiver of any rights or remedies of Landlord or a waiver of any subsequent
violation or failure of compliance with these Rules and Regulations as the same
may be amended from time to time.
20. AMENDMENT. Landlord shall have the right to promulgate additional
Rules and Regulations, amend or rescind any of the foregoing Rules and
Regulations from time to time as Landlord, in its sole discretion, deems
suitable for the safety, care and cleanliness of the Office Complex and the
conduct of a first class office building therein. Each Tenant shall comply with
all new or amended Rules and Regulations, upon receipt of written notice of the
same from Landlord.
21. CONSENT. Whenever the consent or approval of Landlord is required
pursuant to these Rules and Regulations, such consent shall be in writing, and
may be given or withheld by Landlord in its sole discretion.
22. CONFLICT WITH LEASE. These Rules and Regulations are in addition
to, and shall not be construed to in any way modify or amend the terms,
provisions, agreements, covenants and conditions of the Lease. In the event of
any conflict between the Rules and Regulations and the Lease, the terms and
provisions of the Lease shall prevail.
Initials of:
______________
Landlord
______________
Tenant
Page E-3
<PAGE>
EXHIBIT "F"
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
BLUMBERG / ALHAMBRA PARTNERS, AS LANDLORD
AND SUNGLASS HUT INTERNATIONAL, INC., AS TENANT
DATED JULY, 1996
TENANT ESTOPPEL CERTIFICATE
To:
Re: Property Address: 255 Alhambra Circle, Coral Gables, Florida 33134
Lease Date: ________________________________________________
Between: Blumerg / Alhambra Partners, a Florida General
Partnership, Landlord
and Sunglass Hut International, Inc., a Florida
Corporation, Tenant
Square Footage
Leased: _____________
Suite No. _____________
Floor: _____________
The undersigned, Tenant under the above referenced lease ("Lease"),
certifies to Blumberg / Alhambra Partners, the following:
1) The above-described Lease has not been canceled, modified, assigned,
extended or amended except as follows:________________________________.
2) Rent has been paid to the first day of the current month and all
additional rent has been paid and collected in a current manner. There
is no prepaid rent, except $_______________ Dollars ($___) and the
amount of security deposit is $________________________________________
Dollars ($____).
3) We took possession of the leased premises on _________ and commenced
to pay rent on ____________ in the amount of $_________.
4) The Lease terminates on the ___ day of ___________, 1999 and we have
the following renewal option(s)________________________________________
______________________________________________________________________.
5) All work to be performed for us under the Lease has been performed
as required and has been accepted by us, except _______________________
__________.
6) The Lease is in full force and effect and free from default
thereunder by Landlord or Tenant, and we have no claims or defenses
against the Landlord or offsets against rents or other sums due under
the Lease.
7) No event has occurred which authorizes, or with the passage of time
will authorize, Landlord or Tenant to terminate this Lease.
8) The undersigned has received no notice of prior sale, transfer or
assignment, hypothecation or pledge of the said Lease or of the rents
received therein, except ___________________________________.
9) The undersigned has not assigned, or transferred the said Lease or
sublet all or any portion of the demised premises ("Premises") nor does
the undersigned hold the Premises under assignment or sublease, except
______________.
Page F-1
<PAGE>
10) The base year for operating expenses and real estate taxes, as
defined in the said Lease, is __________.
11) The undersigned has no other interest in any other part of the
building, of which the Premises form a part or to any personal property
appurtenant thereto or used in connection therewith except
____________________________________.
12) The undersigned has no right or option pursuant to the said lease
or otherwise to purchase all or any part of the Premises or the
building of which the Premises are a part.
13) There are no other agreements written or oral between the
undersigned and the Landlord with respect to the Lease and/or the
leased premises and building.
14) The statements contained herein may be relied upon by Landlord
under the said Lease by any prospective purchaser of the fee of the
Premises, and by any prospective mortgagee of Landlord's interest in
the Premises.
If we are a corporation, the undersigned is a duly appointed officer of
the corporation signing this certificate and is the incumbent in the office
indicated under his name.
In any event, the undersigned individual is duly authorized to execute this
certificate.
Dated this ___ day of _______, 19__.
Tenant:
By:_________________________
Page F-2
<PAGE>
DISCLOSURE STATEMENT
RE: The sale/lease between American Ventures Realty Corporation as
Seller/Landlord and Sunglass Hut International, Inc. as
Purchaser/Tenant of the premises identified as 255 Alhambra Circle,
Suite 1100, Miami, Florida.
Pursuant to Ch. 475, Florida Statutes, and Rule 221V-10.033, Rules of
the Florida Real Estate Commission, American Ventures Realty
Corporation ("AVRC") makes the following disclosures.
I. In the above transaction, AVRC represents:
_________ (a) The Tenant/Purchaser only;
____X____ (b) the Landlord/Seller only;
_________ (c) the SubTenant and Sublandlord jointly and such dual
agency is expressly consented to by the parties by
their execution hereof.
II. In the above transaction, AVRC shall receive its compensation from:
_________ (a) The Tenant/Purchaser only;
____X____ (b) the Landlord/Seller only;
_________ (c) both the Tenant/Purchaser and the Landlord/Seller and
such payment is expressly consented to by the parties
by their execution hereof.
The parties named below acknowledge and agree to representations and
compensation disclosed above.
AMERICAN VENTURES REALTY CORPORATION SUNGLASS INTERNATIONAL, INC.
By: /S/ [ILLEGIBLE] By: /S/ JACK CHADSEY
-------------------------------- ---------------------------------
Title: President Title: President and CEO
------------------------------
Date: 8/8/96 Date: July 30, 1996
------------------------------ -------------------------------
<PAGE>
TO OFFICE SPACE LEASE AGREEMENTS
THIS MODIFICATION ("Modification Agreement") to Office Space Lease Agreements is
made and entered into as of the 30th day of September 1999, by and between
BLUMBERG/ALHAMBRA PARTNERS ("Landlord") and SUNGLASS HUT INTERNATIONAL, INC.
("Tenant").
RECITATIONS
A. The Travelers Insurance Company, a Connecticut corporation ("Former
Landlord") enetered into that certain Office Space Lease Agreement ("First
Lease") dated October 28, 1993, covering and demising thirty three thousand five
hundred fourteen (33,514) square feet of rentable floor space consisting of the
entire 12th and 13th Floors of the building ("Building"), having a street
address of 255 Alhambra Circle, Coral Gables, Florida 33134 and commonly known
as Alhambra International Center. Landlord is the successor in interest to
Former Landlord and is now the owner and holder of the record fee simple title
to the Alhambra International Center and is the owner and holder of the Lessor's
interest in and to the First Lease. The First Lease has been previously modified
by First and Second Modifications of Space Lease Agreements executed by Landlord
and Tenant dated November 23, 1994 and July 30, 1996, respectively, and
reference to "First Lease" includes said modification. As modified, the First
Lease covers forty two thousand one hundred eleven (42,111) square feet of
Rentable Area.
B. By Office Space Lease Agreement ("Second Lease") dated July 30, 1996
by and between Landlord and Tenant, Landlord leased to Tenant and Tenant leased
from Landlord, thirteen thousand sixty nine (13,069) rentable square feet of
floor space (the "Second Lease Premises" on the ground floor and seventh (7th)
floor of the Building.
C. Tenant has requested that the Second Lease be modified to increase
the Premises covered and demised by that Lease by an additional Eight Thousand
Two Hundred Fifteen (8,215) rentable square feet, located on the first (1st) and
sixth (6th) floors of the Building, hereinafter more particularly located and
described and hereinafter referred to as the "Expansion Space" and to modify
other provisions of the Second Lease as necessary or desirable as a result of
such increase in the size of the Premises. As a condition to its agreement to so
modify the Second Lease, Landlord requires that the security deposit under the
Second Lease be increased as hereinafter provided and be made security for the
performance of both the First Lease and Second Lease by Tenant, as hereinafter
provided. Landlord and Tenant have agreed to so modify the First Lease and
Second Lease and desire that their entire understanding and agreement be reduced
to writing as hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and Ten Dollars ($10.00) and other good and valuable
considerations passing between the parties, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. The foregoing recitations are true and correct and incorporated
herein by reference.
2. All capitalized terms utilized herein shall have the same meaning as
set forth in the affected Lease except as expressly otherwise provided herein.
In the event of any conflict between the
<PAGE>
Terms of the affected Lease and the terms of this Modification Agreement, the
terms hereof shall govern.
3. The Expansion Space is located on the first and sixth floors of the
Building and is identified as Suite 120 and 680, respectively, as graphically
depicted on the floor plans attached hereto as Exhibit "A-1" and "A-2" and made
a part hereof. As of January 1, 2000, the Expansion Space shall be added to and
become a part of the Premises demised under and covered by the Second Lease and
the term "Premises" shall, as of January 1, 2000, as used in the Second Lease,
include both the original space demised under that Lease and the Expansion
Space. On and after January 1, 2000 the expansion Space shall be included in the
Premises under the Second Lease for the remaining term of the Lease, and said
Premises is hereinafter referred to as the "Second Lease Premises".
4. Section 1.2 of the Second Lease is hereby modified and amended to
reflect that as of November 1, 1999, the Rentable Area of the Second Lease
Premises is increased by the addition of the Expansion Space and on and after
that date contains Twenty One Thousand Two Hundred Eighty Four (21,284) rentable
square feet. All provisions of the Second Lease affected by an increase in the
size of the Premises originally covered and demised by that Lease are hereby
modified as appropriate to reflect such increase and the Lease is further
modified and amended as hereinafter provided.
5. The Second Lease is hereby further modified and amended as follows:
(a) The monthly installments of Base Rent payable under the
Second Lease on the first day of each month are increased to reflect the
addition of the Expansion Space by the amount of Eighteen Thousand Four Hundred
Eighty Three and 75/100 Dollars ($18,483.75) ("Expansion Space Rent"), per month
commencing January 1, 2000 and continuing throughout the term of the Lease,
provided that the amount of such increase in the monthly installments of Base
Rent attributable to the addition of the Expansion Space shall be adjusted as of
the first day of January, 2001 and as of the first day of January of each year
thereafter (the "Adjustment Date") during the term of the Second Lease by the
greater of (i) four (4%) percent of the Expansion Space Rent last then in
effect, or (ii) the sum obtained by multiplying the Expansion Space Rent last
then in effect by the percentage increase in the CPI (as defined in the Second
Lease) occurring between September of the then last preceding calendar year and
September of the calendar year in which the adjustment is being made; provided
that in no event shall the amount of increase in the monthly installments of
Base Rent as of any Adjustment Date exceed sin (6%) percent of the Expansion
Space Rent last then in effect. If the CPI for the month of September preceding
any Adjustment Date shall not be available as of the Adjustment Date, the
Expansion Space Rent shall be increased by 4% as above provided on the
Adjustment Date and shall continue at that rate until the required CPI is
available, whereupon the alternative calculation utilizing the CPI shall be made
and if same shall result in a greater increase in the Expansion Space Rent than
the 4% increase, the Expansion Space Rent shall be appropriately increased
(subject to the limitation above stated) and any deficiency in the payments of
Expansion Space Rent then accrued shall be paid with the next monthly
installment of Base Rent becoming due.
(b) As its share of any Increase in Operating Costs as defined
in Section 3.4 of the Second Lease attributable to the Expansion Space, Tenant's
Share of Increases in Operating Costs shall be three and nine hundred fifty
seven one thousandths (3 and 957/1000%) percent. For purposes of calculation of
the amount of Tenant's Proportionate Share of Increases in Operating Costs for
the
<PAGE>
Expansion Space, the "Initial Basic Cost" for the Expansion Space shall be the
Basic Cost for the calendar year 2000. Tenant's Proportionate Share of Increases
in Operating Costs attributable to the Expansion Space shall, subject to the
provisions of this paragraph be calculated and payable in accordance with the
provisions of Article III of the Second Lease. Tenant's Proportionate Share and
the Initial Basic Cost applicable to the portion of the Premises excluding the
Expansion Space shall remain as provided in the Second Lease prior to this
Modification and shall be so calculated and payable.
(c) Attached hereto as Exhibit "B" is a Work Letter
referencing improvements to be made in the Expansion Space by Landlord. The
Second Lease is hereby modified and amended to include the Work Letter hereto
attached and Landlord and Tenant hereby agree to the terms and provisions of
said Work Letter for the Expansion Space.
(d) As of January 1, 2000 Tenant's allotment of unassigned
parking spaces under the Second Lease shall be increased from 32 to 53
unreserved parking spaces. The charge for additional unreserved parking space
shall be $65.00 per month commencing January 1, 2000 subject to subsequent
adjustment to market rate as provided by the Second Lease. Nothing herein shall
affect the allotment of or charges for parking spaces provided in the First
Lease.
(e) The Second Lease is hereby modified and amended to provide
that Tenant shall be permitted window signage in the front window exposed to
Alhambra Circle in the location and in accordance with the specifications
provided by Tenant which shall be subject to Landlord's approval which approved,
may be granted or withheld in Landlord's sole and absolute discretion. Such
signage shall be at the cost of Tenant, shall comply with all applicable
governmental rules, regulations and codes, and Tenant shall maintain same in
first class condition and repair. No other signage visible from the exterior of
the Expansion Space shall be permitted in or on the Expansion Space.
(f) Section 5.1 of the Second Lease is hereby amended by
deleting the present text thereof and inserting in place and instead thereof the
following:
Use. Throughout the term of this Lease, Tenant shall use and
occupy the Second Lease Premises as defined in the Modification to Office Space
Lease Agreements, excluding that portion thereof identified on Exhibit "A-1"
hereto attached as "Retail Space", solely for general office use, and shall use
and occupy that portion of the Second Lease Premises, identified on Exhibit "A"
as "Retail Space" solely for the operation of a combined Sunglass Hut and Watch
Station retail outlet of same general kind, character and quality as Sunglass
Hut and Watch Station retail outlets presently in operation by Tenant in
Miami-Dade County Florida. No use may be made of any portion of the Second
Leased Premises other than as provided in the preceding sentence with regard to
that portion of the Second Lease Premises, without the prior written consent of
Landlord. Tenant shall keep the Retail Space open for the conduct of its
business as a Sunglass Hut/Watch Station location during all normal retail hours
in the general area of the Building. It is expressly agreed that neither Tenant
nor any sublessee or assignee of Tenant may modify the design of the Expansion
Space in any such way as to alter the existing appearance of the ground floor
public areas including store fronts, corridors and lobby areas, except as
expressly provided in said Modification to Office Space Lease Agreements. Tenant
shall not use or occupy the Second Lease Premises for any unlawful purposes or
in any manner
<PAGE>
that will constitute waste, nuisance or unreasonable annoyance to the Landlord
or other Tenants of the Building.
(g) Tenant shall install at Landlord's request in Landlord's
sole and absolute discretion "Building Standard" window blinds for all ground
floor retail space.
6. Prior to January 1, 2000, Tenant shall cause the Irrevocable Letter
of Credit in the amount of Three Hundred Thousand and 00/100 Dollars
($300,000.00) presently held by Landlord as a security deposit under the Second
Lease to be increased to Three Hundred Seventy Five thousand and 00/100 Dollars
($375,000.00), either by amendment by the issuer bank or replacement by Tenant.
By this instrument, the Second Lease and the First Lease are modified
and amended to provide that the amended or replaced Letter of Credit shall serve
as a security deposit for the performance of both Leases by Tenant, subject to
be drawn upon by Landlord upon default by Tenant in either Lease in accordance
with the terms of each of said Leases and the amended or replaced Letter of
Credit shall so provide. The provisions of the First Lease relating to the
reduction in the amount of the security deposit represented by Letter of Credit
originally provided under that Lease are hereby deleted and shall be of no
further force or effect.
7. Notwithstanding anything to the contrary provided in the Second
Lease, as hereby modified, Tenant shall have the right to cease use of the
Retail Space for the operation of a combined Sunglass Hut and Watch Station
retail outlet and convert same to general office us in its operations, within
six (6) months after November 1, 1999. If tenant shall be entitled to convert
the Sunglass Hut/Watch Station retail operation in the Retail Space to general
office use and shall elect to do so, Tenant shall give written notice thereof to
Landlord accompanied by the required certification within said six (6) month
period and shall thereupon convert the use of such space to general office use
within said six (6) month period. Once so converted, the Retail Space shall, for
the duration of the term of the Second Lease, be used for general office
purposes in Tenant's operations and for no other purpose without Landlord's
prior written consent.
8. At the time of the execution of this Modification Agreement there is
a sign mounted on the east granite wall of the Building bearing the name of the
prior tenant "Dreyfus". Prior to occupancy of the Expansion Space by Tenant the
sign shall be removed and Landlord agrees that Landlord will not lease the sign
space to any party on or before December 31, 1999.
9. Tenant represents and warrants to Landlord that there is no Broker
involved on its behalf or employed in connection with the leasing of the
Expansion Space or the negotiation or consummation of this Modification
Agreement and agrees to indemnify and hold Landlord harmless against any claim
or liability asserted by any broker claiming commission or compensation on
account of this transaction as having represented Tenant or presented the
Expansion Space to Tenant for leasing. Landlord represents and warrants to
Tenant that expect for American Ventures Realty Corporation, there is no other
broker involved on its behalf or employed by it in connection with the Leasing
of the Expansion Space to Tenant or the negotiation and consummation of this
Modification
<PAGE>
Agreement, and agrees that all commissions and compensation due American
Ventures Reatly Corporation shall be paid solely by Landlord.
10. Except as herein expressly modified and amended, the First and
Second Leases shall remain in full force and effect, otherwise unamended and
unmodified.
11. In accordance with the requirements of Section 404.56(6) the
following notice is hereby given.
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed Federal and
State guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument
as of the day and year first above written.
Signed, Sealed and Delivered
In the Presence of: LANDLORD:
[ILLEGIBLE]
- ------------------------------- Blumberg/Alhambra Partners,
[ILLEGIBLE] a Florida general partnership
- -------------------------------
(As to Landlord)
BY: American Ventures Property
Fund-I, Ltd. A Florida limited
partnership, managing partner
BY: AVRA GPI, Inc., a Florida
corporation As general partner
BY: /s/ Philip F. Blumberg
-------------------------------
Philip F. Blumberg, President
TENANT:
[ILLEGIBLE] SUNGLASS HUT INTERNATIONAL, INC.
- ------------------------------
[ILLEGIBLE] BY: /s/ Roger Kehm
- ------------------------------ -------------------------------
(As to Tenant) Roger Kehm
Senior Vice President
Real Estate and Construction
<PAGE>
EXHIBIT "A-1"
MODIFICATION TO OFFICE SPACE LEASE AGREEMENTS BETWEEN
BLUMBERG / ALHAMBRA PARTNERS, AS LANDLORD
AND COMPANY SUNGLASS HUT INTERNATIONAL, INC. AS TENANT
DATED SEPTEMBER 30, 1999
FLOOR PLAN
ALHAMBRA INTERNATIONAL CENTER
-----------------------------
First Floor
[GRAPHIC OMITTED]
Initials of:
Landlord
Tenant
<PAGE>
EXHIBIT "A-2"
MODIFICATION TO OFFICE SPACE LEASE AGREEMENTS BETWEEN
BLUMBERG / ALHAMBRA PARTNERS, AS LANDLORD
AND COMPANY SUNGLASS HUT INTERNATIONAL, INC. AS TENANT
DATED SEPTEMBER 30, 1999
FLOOR PLAN
ALHAMBRA INTERNATIONAL CENTER
-----------------------------
Sixth Floor
[GRAPHIC OMITTED]
Initials of:
Landlord
Tenant
<PAGE>
EXHIBIT "B"
MODIFICATION TO OFFICE SPACE LEASE AGREEMENTS BETWEEN
BLUMBERG / ALHAMBRA PARTNERS, AS LANDLORD
AND COMPANY SUNGLASS HUT INTERNATIONAL, INC. AS TENANT
DATED SEPTEMBER 30, 1999
WORKLETTER
Landlord and Tenant agree as follows:
1. Plans. Landlord shall provide, at Tenant's expense, services of an
architect, Slack Alvarez Associates (the "Architect Services"). As part of the
Architect Services, Slack Alvarez Associates has prepared or shall prepare a
preliminary space plan for the Expansion Space which shall include partitions,
door location and finish specifications desired by Tenant. Upon approval of the
preliminary space plan by both parties and a fully executed Lease, as part of
the Architect Services, Slack Alvarez Associates shall, with the assistance of a
qualified engineer, prepare construction documents (the "Construction
Documents"), including partition detail, door location drawings, telephone
rough-in locations, electrical specifications, HVAC specifications, reflected
ceiling plan and finish specifications required by Tenant and consistent with
the preliminary space plan. The Space Plan or Construction Documents and any
changes thereto are subject to Landlord approval. Tenant agrees to pay for
changes or alterations to the Space Plan or Construction Documents or any costs
incurred by the Architect Services due to Tenant's or Landlord's request.
2. Selection of Contractor. Promptly following the completion and
Tenant approval of the Construction Documents, Landlord, shall prepare bid
packages and shall solicit bids for the construction of the Work (hereinafter
"Work") from the contractors Landlord deems qualified to work in the Building.
Bids from the approved Contractors shall be delivered to the offices of
Landlord. Landlord shall award the construction contract for the Work to such
bidder among the approved contractors as Landlord deems appropriate in its sole
discretion.
3. Tenant Improvement Allowance. Landlord shall provide a Tenant
Improvement Allowance (the "Allowance") of Eighty Two Thousand One Hundred Fifty
and 00/000 Dollars ($82,150.00). Landlord shall first apply the Allowance to the
total cost of the Work. In the event the cost of the Work exceeds the Allowance,
prior to the commencement of the Work, Tenant shall pay to the Landlord fifty
percent (50%) of the estimated cost of the Work in excess of the Allowance; and
the remaining fifty percent (50%) of the estimated cost of the Work in excess of
the Allowance shall be paid by the Tenant to the Landlord upon issuance of a
Certificate of Occupancy by the City of Coral Gables. All additional costs
attributable to change orders or modifications requested by Tenant, shall be at
Tenant's expense and shall be payable within five (5) days of invoicing by
Landlord.
<PAGE>
The Allowance is to be used solely for the purposes specifically set
forth in this Workletter and for no other purpose unless otherwise agreed in
writing by the parties hereto.
4. Construction of Tenant Improvements. Except as provided in paragraph
5 hereinafter, Landlord shall cause to be performed within the Expansion Space,
substantially in accordance with Construction Documents approved by Landlord and
Tenant, partitions, interior doors, lights, fixtures, acoustical ceiling, floor
covering, electrical outlets, telephone rough outs, HVAC supply and returns and
other improvements required by Tenant which are normally performed by the
construction trade.
All Work (as defined in Paragraph 4 of this Workletter) will be
performed by a contractor selected by Landlord, subject to the conditions set
forth herein. All mechanical, structural, electrical, plumbing and fire
sprinkler engineering required for the Work will be performed by the Landlord's
engineers at Tenant's expense.
Subject to the provisions of the lease and this Workletter, Landlord
shall proceed with reasonable diligence to cause the work to be accomplished,
subject to events beyond Landlord's reasonable control, including, without
limitation, any of the items set forth in paragraph 8 of this Workletter.
5. Other Work by Tenant. All work not within the scope of the normal
construction trades employed by the Landlord, such as the furnishing and
installing of window treatment, furniture, telephone equipment and wiring and
office equipment shall be furnished and installed by Tenant at Tenant's expense.
Tenant shall adopt a schedule in conformance with the schedule of Landlord's
contractors and conduct its work in such manner as to maintain harmonious labor
relations and as not to unreasonably interfere with or delay the work of
Landlord's contractors. Tenant's contractors, subcontractors and laborers shall
be subject to the administrative supervision of Landlord's general contractor.
Contractors and subcontractors engaged by Tenant shall employ sufficient
personnel and means to insure so far as may be possible the progress of the work
without interruption on account of strikes, work stoppage or similar causes for
delay. Landlord shall give reasonable access and entry to the Expansion Space to
Tenant and its contractors and subcontractors and reasonable opportunity and
time and reasonable use of available facilities so as to enable Tenant to adapt
the Expansion Space for Tenant's use; provided, however, that if such entry is
prior to the commencement of the term of this Lease, such entry shall be subject
to all of the terms and conditions of the Lease except the payment of rent.
6. Substitute Materials. Landlord reserves the right to substitute
materials, finishes, fixtures, equipment and the like for similar materials
(hereinafter "Materials"), etc. which are of comparable quality.
7. Completion-Punchlist. When Landlord, in its sole discretion,
considers the Work substantially complete or about to be substantially
completed, Landlord shall notify Tenant as to the date or anticipated date of
substantial completion and of a time and date for inspection of the Work. Tenant
agrees to inspect the Expansion Space at such time and on such date and to
execute at the time of such inspection Landlord's form of inspection report
which shall list items designated by Landlord as not yet completed and any
additional items which Landlord and Tenant reasonably agree upon such
<PAGE>
inspection are not yet completed (said list is hereinafter referred to as the
"Punchlist"). If the Punchlist consists only of items which shall not materially
interfere with Tenant's ability to use and occupy the Expansion Space for its
intended purpose, Tenant agrees to also execute at the time of such inspection a
written statement that the Expansion Space has been substantially completed in
accordance with this Workletter and the Lease subject only to the items listed
on the Punchlist. If Tenant does not appear for inspection on the date
designated or agreed upon, Tenant shall be deemed to have accepted the Expansion
Space as substantially competed and Landlord or its representative may execute
the Punchlist on behalf of both Landlord and Tenant. Tenant agrees that, at the
request of Landlord from time to time after the initial inspection, Tenant shall
initial the Punchlist or execute revised Punchlists to reflect partial
completion of prior Punchlist items.
At any time after substantial completion of the Work or the
Commencement Date of the Term of the Lease, whichever occurs first, Landlord may
enter the expansion Space to complete Punchlist items.
8. Delays in Work. The following shall constitute Tenant Delays to
substantial completion of the Work, which Tenant recognizes will delay
completion of the Work.
(a) Tenant's delay of approving the space plan, the
Construction Documents or any revision(s) thereto; or
(b) Tenant's delay in approving any pricing schedule or
revisions thereto; or
(c) Landlord's inability to obtain any materials, finishes, or
installations, or complete any construction procedures specially requested by
Tenant as part of the Work on a timely basis; or
(d) Delay in commencement of any Work on account of Tenant's
failure to pay for any portion of the cost of the Work as and when payable by
Tenant hereunder; or'
(e) Tenant's requested changes in Tenant Work, Space Plan or
Construction Documents; or
(f) Any other act, omission or delay by Tenant, its agents,
contractors or persons employed by any such persons which directly delays the
substantial completion of the Work.
9. Miscellaneous.
(a) The Work shall be done by Landlord, or its designees,
contractors or subcontractors, in accordance with the terms, conditions and
provisions herein contained.
(b) Except as expressly set forth herein or in the Lease,
Landlord has no other agreement with Tenant and has no separate obligation to do
any other work with respect to the Expansion Space.
<PAGE>
(c) Any person signing the Workletter on behalf of Landlord or
Tenant warrants and represents he or she has the authority to do so.
(d) This Workletter shall not be applicable to any additional
area added to the original Expansion Space at any time or from time to time,
whether by any options under the Lease or otherwise, or to any portion of the
original Expansion Space or any additions thereto in the event of a renewal or
extension of the original Term of this Lease, whether by any options under the
Lease or otherwise, unless expressly so provided in the Lease or any riders or
supplement thereto.
(e) With respect to any amounts owed by Tenant hereunder and
not paid when due or Tenant's failure to perform its obligations hereunder,
Landlord shall have all of the rights and remedies granted to Landlord under the
Lease, as in the event of a default, for non-payment by Tenant of any amounts
owed thereunder or failure by Tenant to perform its obligations thereunder.
EXHIBIT 21.1
SUNGLASS HUT INTERNATIONAL, INC.
SUBSIDIARIES OF THE REGISTRANT
NAME OF SUBSIDIARY STATE OR COUNTRY OF INCORPORATION
Sunglass Hut Corporation Florida
Sunglass Hut Trading Corporation Florida
Sunglass Hut of Canada, Ltd. Ontario, Canada
Sunglass Hut of Puerto Rico, Inc. Puerto Rico
Sunglass Hut of Virgin Islands, Inc. US Virgin Islands
Sunglass Hut Realty Corporation Florida
Sunglass Hut of Florida, Inc. Florida
Sunglass Hut (UK) Limited United Kingdom
Sunglass Hut Ireland Limited Ireland
Sunglass Hut Netherlands B.V. Netherlands
Sunglass Hut Finance B.V. Netherlands
Sunglass Hut Belgium N.V. Belgium
Sunglass Hut Italy S.R.L. Italy
Sunglass Hut de Mexico, S.A de C.V. Mexico
Distribuidora Mexicana de Articulos Para Sol S.A de C.V. Mexico
Sunglass Hut Holdings of France, Inc. Florida
Sunglass Hut of Northern France, Inc. Florida
Sunglass Hut of Southern France, Inc. Florida
Sunglass Hut of France, SNC France
Sunglass Hut Australia PTY Limited Australia
Sunglass World Holdings PTY Limited Australia
Sunglass Hut Sweden AB Sweden
Sunglass Hut Portugal, Comercio de Oculos, Lda. Portugal
Sunglass Hut Germany GMBH Germany
Sunglass Hut Spain SL Spain
Watch Station, Inc. Florida
Shadescom, Inc Florida
Sunglass Hut (Sint Maarten) N.V. Netherland Antilles
Sunglass Hut (Antigua) Limited Antigua
Sunglass Hut New Zealand PTY Ltd. New Zealand
Sunglass Hut (Barbados) Inc. Barbados
Sunglass Hut (South East Asia) PTE Ltd. Singapore
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation of our report included in this Form 10-K, into the Company's
previously filed registration statements (File No. 33-73644, File No. 33-89954
and File No. 333-20107 on Form S-8 and File No. 333-12003 on Form S-3).
ARTHUR ANDERSEN LLP
Miami, Florida,
April 17, 2000.
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