UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 30, 1999
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. 0-22102
Cygne Designs, Inc.
-------------------
Delaware 04-2843286
- ---------------------------------- --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
680 Fifth Avenue, New York, New York 10019
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(212) 489-3900
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Not Applicable
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
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 the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date.
Common Stock, $.01 par value, 12,438,038 shares as of December 13, 1999.
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Index to Form 10-Q
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
Condensed Consolidated Balance Sheets at October 30, 1999 and
January 30, 1999 .......................................................... 1
Condensed Consolidated Statements of Operations for the three and
nine months ended October 30, 1999 and October 31, 1998 ................. 2
Condensed Consolidated Statement of Stockholders' Equity for the
nine months ended October 30, 1999 ...................................... 3
Condensed Consolidated Statements of Cash Flows for the
nine months ended October 30, 1999 and October 31, 1998 ................. 4
Notes to Condensed Consolidated Financial Statements ...................... 5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations ........................... 12
PART II OTHER INFORMATION
Item 4. Other Information ................................................. 21
Item 6. Exhibits and Reports on Form 8-K .................................. 22
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Condensed Consolidated Balance Sheets (Unaudited)
<TABLE>
<CAPTION>
October 30, January 30,
1999 1999
--------- ---------
ASSETS (In thousands, except share
and per share amounts)
<S> <C> <C>
Current assets:
Cash (includes restricted cash of $1,653 and $669,
respectively) $ 3,988 $ 3,686
Trade accounts receivable, net 4,703 8,242
Inventory 1,694 2,705
Assets held for sale 4,071 4,700
Other receivables and prepaid expenses 1,272 996
--------- ---------
Total current assets 15,728 20,329
Fixed assets, net 2,544 2,720
Other assets 550 550
--------- ---------
Total assets $ 18,822 $ 23,599
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term borrowings $ 2,786 $ 2,754
Accounts payable 1,923 4,579
Accrued expenses 3,150 4,140
Income taxes payable 5,979 6,080
--------- ---------
Total current liabilities 13,838 17,553
Stockholders' equity:
Preferred stock, $0.01 par value; 1,000,000 shares
authorized: none issued and outstanding
Common stock, $0.01 par value; 25,000,000 shares
authorized: 12,438,038 shares issued and
outstanding 124 124
Paid-in capital 120,918 120,918
Accumulated deficit (115,928) (114,872)
Foreign currency translation adjustment (130) (124)
--------- ---------
Total stockholders' equity 4,984 6,046
--------- ---------
Total liabilities and stockholders' equity $ 18,822 $ 23,599
========= =========
</TABLE>
See accompanying notes.
1
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Condensed Consolidated Statements of Operations (Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------- -----------------------
OCTOBER 30, OCTOBER 31, OCTOBER 30, OCTOBER 31,
1999 1998 1999 1998
---------- ---------- ---------- ----------
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Net sales $ 22,799 $ 13,158 $ 49,526 $ 27,912
Cost of goods sold 21,579 13,470 45,612 28,063
-------- -------- -------- --------
Gross profit (loss) 1,220 (312) 3,914 (151)
Selling, general and administrative
expenses 1,086 1,108 3,110 3,480
Provision for impairment of
Knit business assets 530 -- 1,416 --
Amortization of intangibles -- 91 -- 273
-------- -------- -------- --------
(Loss) from operations (396) (1,511) (612) (3,904)
Interest income (33) (174) (82) (378)
Interest expense 104 40 479 195
-------- -------- -------- --------
(Loss) before income taxes (467) (1,377) (1,009) (3,721)
Provision for income taxes 3 107 47 218
-------- -------- -------- --------
Net (loss) $ (470) $ (1,484) $ (1,056) $ (3,939)
======== ======== ======== ========
Net (loss) per share--basic $ (0.04) $ (0.12) $ (0.08) $ (0.32)
======== ======== ======== ========
Weighted average number of
common shares outstanding 12,438 12,438 12,438 12,438
======== ======== ======== ========
Net (loss) per share assuming dilution $ (0.04) $ (0.12) $ (0.08) $ (0.32)
======== ======== ======== ========
Weighted average number of common shares
and dilutive securities 12,438 12,438 12,438 12,438
======== ======== ======== ========
</TABLE>
See accompanying notes.
2
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Condensed Consolidated Statement of Stockholders' Equity (Unaudited)
<TABLE>
<CAPTION>
COMMON STOCK FOREIGN
---------------------- CURRENCY
NUMBER PAID-IN TRANSLATION ACCUMULATED
OF SHARES AMOUNT CAPITAL ADJUSTMENT DEFICIT TOTAL
--------- ------ ------- ---------- ------- -----
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance at January 30, 1999 12,438 $ 124 $ 120,918 $ (124) $(114,872) $ 6,046
Foreign currency translation adjustment -- -- -- (6) -- (6)
Net (loss) for the nine months ended
October 30, 1999 -- -- -- -- (1,056) (1,056)
---------
Comprehensive (loss) for the nine
months ended October 30, 1999 -- -- -- -- -- (1,062)
------ --------- --------- --------- --------- ---------
Balance at October 30, 1999 12,438 $ 124 $ 120,918 $ (130) $(115,928) $ 4,984
====== ========= ========= ========= ========= =========
</TABLE>
See accompanying notes.
3
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Condensed Consolidated Statements of Cash Flows (Unaudited)
Nine months ended
October 30, October 31,
1999 1998
----------- -----------
(In thousands, except share and
per share amounts)
OPERATING ACTIVITIES
Net (loss) $ (1,056) $ (3,939)
Adjustments to reconcile net (loss) to net cash
provided by (used in) operating activities:
Provision for impairment of Knit business
assets 1,416 --
Depreciation and amortization 364 380
Amortization of intangibles -- 273
Changes in operating assets and liabilities:
Trade accounts receivable 3,559 (18)
Inventory 2,887 (3,031)
Other receivables and prepaid expenses (174) 877
Accounts payable (5,258) (1,811)
Accrued expenses (1,285) (1,565)
Income taxes payable (101) (10)
-------- --------
Net cash provided by (used in) operating
activities 352 (8,844)
-------- --------
INVESTING ACTIVITIES
Purchase of fixed assets, net (76) (227)
Other assets -- (190)
-------- --------
Net cash (used in) investing activities (76) (417)
-------- --------
FINANCING ACTIVITIES
Borrowings (repayments) of short-term
borrowings, net 32 1,701
-------- --------
Net cash provided by financing activities 32 1,701
-------- --------
Effect of exchange rate changes on cash (6) --
-------- --------
Net increase (decrease) in cash 302 (7,560)
Cash at beginning of period 3,686 10,926
-------- --------
Cash at end of period $ 3,988 $ 3,366
======== ========
SUPPLEMENTAL DISCLOSURES
Income taxes paid $ 431 $ 228
Interest paid 499 201
See accompanying notes.
4
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited)
October 30, 1999
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements of Cygne
Designs, Inc. ("Cygne") and its subsidiaries (collectively the "Company") have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three and nine months ended October 30,
1999 are not necessarily indicative of the results that may be expected for the
fiscal year ended January 29, 2000. For further information, refer to the
financial statements and footnotes thereto included in the Company's Annual
Report on Form 10-K for the year ended January 30, 1999. The balance sheet at
January 30, 1999 has been derived from the audited financial statements at that
date.
The Company's fiscal year ends on the Saturday nearest to January 31.
DISPOSITION OF COMPANIES
On November 15, 1999, with an effective date of October 31, 1999, Cygne Designs,
Inc. (the "Company") consummated the sale of its Knit business to Jordache
Limited ("Jordache") pursuant to the Amended and Restated Acquisition Agreement
dated as of August 1, 1999, by and among M.T.G.I.--Textiles Manufacturing Group
(Israel) Ltd. ("MTGI"), MBS (Cygne) Company, A.C. Services, Inc. and Jordache
Limited.
The assets transferred to Jordache consisted of substantially all of the assets
used by the Knit business in the manufacture of women's knit clothing, including
machinery, equipment, raw materials, leases, rental agreements, supplies used in
the business, furniture, computer hardware and software, and certain operating
data and the records of MTGI and network equipment, as well as all of the
outstanding stock of Wear & Co. S.r.l ("Wear"). MTGI was the Company's
wholly-owned Israeli subsidiary and Wear was the Company's wholly-owned Italian
subsidiary.
5
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited) (continued)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The sale did not include cash, accounts receivable and certain other assets of
the MTGI business.
The liabilities assigned to, and assumed by, Jordache are all obligations of
MTGI under the contracts and registration included within the assets sold to
Jordache. In consideration of the sale to Jordache of the assets, Jordache paid
the Company consideration consisting of an interest-bearing note and cash, equal
to (A) the adjusted net book value of the inventory, fixed assets, advances to
vendors and an investment in a dye house facility owned by MTGI, less an amount
equal to the difference between (1) the sum of (a) $80,000 and (b) MTGI's income
before taxes for the period from August 1, 1999 to October 31, 1999 (2) the
operating expenses of Wear and Wear & Co. International, Inc., the U.S.
marketing company for MTGI and (B) $100,000 for the outstanding stock of Wear
and assumed liabilities described above, with all of the items subject to post
closing adjustment. In addition, Jordache has paid Cygne a commission of
$600,000 on unfilled orders for products included in the assets and $400,000 for
a non-compete payment in the transaction. At the closing the Company received a
note from Jordache in the amount of $2,777,062 bearing interest of 6% per annum
due November 30, 1999 and cash of $500,000. On November 30, 1999, Jordache paid
$1,388,531 of the principal balance of the note and the Company agreed that the
remaining balance and all the accrued interest will be due on or before December
21, 1999. The Company has used the cash proceeds from the sale to fund a portion
of the transaction expenses and taxes related to the sale, and together with
MTGI retained cash and collections of MTGI accounts receivable, repaid banks
borrowings and other MTGI liabilities.
Effective August 1, 1999 in connection with the amended and restated acquisition
agreement, Cygne entered into an agreement pursuant to which an affiliate of
Jordache managed the Company's Knit business from August 1,1999 to the closing
date of the sale of the Knit business to Jordache. In addition Jordache
also provided financing to the Company in connection with certain knit product
purchase orders being manufactured by MTGI during this period.
In connection with the Company's agreement to sell its Knit business, the
Company recorded on the 1999 condensed consolidated statements of operations a
provision for impairment of Knit business assets in the amount of $1,416,000,
consisting of a loss on assets to be sold, transaction costs (including taxes)
and reduction of the purchase price by the adjusted income (as defined) of the
Knit business from August 1,1999 through October 31,1999.
6
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited) (continued)
2. INVENTORY
Inventory is stated at the lower of cost (determined on a first-in, first-out
basis) or market.
October 30, January 30,
1999 (1) 1999 (1)
----------- -----------
(In thousands)
Raw materials and work-in-process $1,580 $2,310
Finished goods 114 395
------ ------
$1,694 $2,705
====== ======
(1) Excludes $1,550,000 and $3,426,000 of inventory of the Knit business being
sold at October 30, 1999 and January 30, 1999, respectively.
3. CREDIT FACILITIES
The Company obtains letters of credit from a domestic bank secured by a cash
deposit from the Company. At October 30, 1999 and January 30, 1999, the Company
had restricted cash at a bank of $1,653,000 and $669,000, respectively, to
secure letters of credit.
The Company had a credit facility with an Israeli bank to finance the Knit
operations. On November 4,1999, the outstanding loans under this facility were
repaid and terminated. On October 30, 1999 the balance outstanding under these
arrangements was approximately $2.8 million.
4. LITIGATION
The Company is involved in various legal proceedings that are incidental to the
conduct of its business, none of which the Company believes could reasonably be
expected to have a material adverse effect on the Company's financial condition
or results of operations. See Note 5 for information regarding income tax
audits.
7
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited) (continued)
5. INCOME TAX
The U.S. Internal Revenue Service (the "IRS") is conducting an audit of the U.S.
Federal income tax returns filed by GJM (US) Inc. for its taxable years ending
December 31, 1990 through October 7, 1994 (the date GJM (US) Inc. was acquired
by the Company). To date, the IRS has informally proposed a Federal income tax
deficiency against GJM (US) Inc. of approximately $16 million (including some
penalties but not interest). Depending on the amount of the deficiency, the
amount of the interest could be significant. The outcome of the audit of GJM
(US) Inc. cannot be predicted at this time. Although the Company is disputing
the proposed adjustment and believes that it has established appropriate
accounting reserves with respect to this matter, an adverse decision in this
matter could have a material adverse impact on the Company and its financial
condition, results of operations, and cash flow.
The Company is subject to other ongoing tax audits in several jurisdictions in
the United States and Israel. Although there can be no assurances, the Company
believes any adjustments that may arise as a result of these other audits will
not have a material adverse effect on the Company's financial position.
As of October 30, 1999, based upon tax returns filed for the fiscal year ended
January 30, 1999, the Company reported a net operating loss carryforward for
U.S. Federal income tax purposes of approximately $112,000,000. If unused, these
loss carryforwards will expire in the Company's taxable years ending 2011
through 2014. Under Section 382 of the U.S. Internal Revenue Code, if there is a
more than 50% ownership change (as defined therein) with respect to the
Company's stock, the Company's loss carryforwards for U.S. Federal and New York
State and City tax purposes would be virtually eliminated.
As of October 30, 1999, based upon tax returns filed for the fiscal year ended
January 30, 1999, the Company reported net operating loss carryforwards for New
York State and City tax purposes (on a separate company basis) of approximately
$72,000,000 and $71,000,000, respectively. If unused, these loss carryforwards
will expire in the Company's taxable years ending in 2011 through 2014.
8
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited) (continued)
6. SEGMENT INFORMATION
Based on the criteria in SFAS No. 131, the Company operates in two segments of
the apparel market: woven career and casual women's sportswear and knit career
and casual women's sportswear. The Company sources and manufactures garments
which have been designed and developed by the customer. The Company sold its
Knit business on November 15, 1999, as of October 31, 1999. (see Note 1)
Net sales to unaffiliated customers and identifiable assets were as follows:
<TABLE>
<CAPTION>
KNIT WOVEN
DIVISION DIVISION CORPORATE TOTAL
-------- -------- --------- --------
<S> <C> <C> <C> <C>
FOR THE NINE MONTHS ENDED
OCTOBER 30, 1999
Net sales $ 32,007 $ 17,519 $ -- $ 49,526
Gross profit 1,480 2,434 -- 3,914
Selling, general and administrative 685 1,498 927 3,110
Provision for impairment of Knit
business assets 1,416 -- -- 1,416
-------- -------- -------- --------
(Loss) income from operations $ (621) $ 936 $ (927) (612)
======== ======== ========
Interest income (82)
Interest expense 479
--------
(Loss) before income taxes (1,009)
Provision for income taxes 47
--------
Net (loss) $ (1,056)
========
Identifiable assets $ 8,666 $ 5,898 $ 4,258 $ 18,822
======== ======== ======== ========
FOR THE THREE MONTHS ENDED
OCTOBER 30, 1999
Net sales $ 18,037 $ 4,762 $ -- $ 22,799
Gross profit 687 533 -- 1,220
Selling, general and administrative 245 530 311 1,086
Provision for impairment of Knit
business assets 530 -- -- 530
-------- -------- -------- --------
(Loss) income from operations $ (88) $ 3 $ (311) (396)
======== ======== ========
Interest income (33)
Interest expense 104
--------
(Loss) before income taxes (467)
Provision for income taxes 3
--------
Net (loss) $ (470)
========
</TABLE>
9
<PAGE>
Cygne Designs, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited) (continued)
6. SEGMENT INFORMATION (CONTINUED)
<TABLE>
<CAPTION>
KNIT WOVEN
DIVISION DIVISION CORPORATE TOTAL
-------- -------- --------- --------
<S> <C> <C> <C> <C>
FOR THE NINE MONTHS ENDED
OCTOBER 31, 1998
Net sales $ 19,342 $ 8,570 $ -- $ 27,912
Gross profit (loss) 1,806 (1,957) -- (151)
Selling, general and administrative 587 983 1,910 3,480
Amortization of intangibles 273 -- -- 273
--------- --------- --------- --------
Income (loss) from operations 946 (2,940) (1,910) (3,904)
Interest income (378)
Interest expense 195
--------
(Loss) before income taxes (3,721)
Provision for income taxes 218
--------
Net (loss) $ (3,939)
--------- --------- --------- ========
Identifiable assets $ 13,634 $ 6,610 $ 3,880 $ 24,124
========= ========= ========= ========
FOR THE THREE MONTHS ENDED
OCTOBER 31, 1998
Net sales $ 8,048 $ 5,110 $ -- $ 13,158
Gross profit (loss) 858 (1,170) -- (312)
Selling, general and administrative 180 312 616 1,108
Amortization of intangibles 91 -- -- 91
--------- --------- --------- --------
Income (loss) from operations 587 (1,482) (616) (1,511)
Interest income (174)
Interest expense 40
--------
(Loss) before income taxes (1,377)
Provision for income taxes 107
--------
Net (loss) $ (1,484)
========
</TABLE>
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Unless otherwise noted, all references to a year are to the fiscal year of the
Company commencing in that calendar year and ending on the Saturday nearest
January 31 of the following year.
Statements in this report concerning the Company's business outlook or future
economic performance; anticipated results of operations, revenues, expenses or
other financial items; private label and brand name products, and plans and
objectives related thereto; and statements concerning assumptions made or
expectations as to any future events, conditions, performance or other matters,
are "forward-looking statements" as that term is defined under the Federal
Securities Laws. Forward-looking statements are subject to risks, uncertainties
and other factors which could cause actual results to differ materially from
those stated in such statements. Such risks, uncertainties and factors include,
but are not limited to, a decline in demand for merchandise offered by the
Company or changes and delays in customer delivery plans and schedules,
significant regulatory changes, including increases in the rate of import duties
or adverse changes in export quotas, dependence on a key customer, risk of
operations and suppliers in foreign countries, competition, general economic
conditions, as well as other risks detailed in the Company's filings with the
Securities and Exchange Commission, including its Annual Report on Form 10-K for
the year ended January 30, 1999. The Company assumes no obligation to update or
revise any such forward-looking statements.
GENERAL
On November 15, 1999, with an effective date of October 31, 1999, Cygne Designs,
Inc. (the "Company") consummated the sale of its Knit business to Jordache
Limited ("Jordache") pursuant to, an Amended and Restated Acquisition Agreement
dated as of August 1, 1999, by and among M.T.G.I.--Textiles Manufacturing Group
(Israel) Ltd. ("MTGI"), MBS (Cygne) Company, A.C. Services, Inc. and Jordache
Limited.
The assets transferred to Jordache consist of substantially all of the assets
used by the Knit business in the manufacture of women's knit clothing, including
machinery, equipment, raw materials, leases, rental agreements, supplies used in
the business, furniture, computer hardware and software, and certain operating
data and the records of MTGI and network equipment, as well as all of the
outstanding stock of Wear & Co. S.r.l ("Wear"). MTGI is the Company's
wholly-owned Israeli subsidiary and Wear was the Company's wholly-owned Italian
subsidiary.
The sale did not include cash, accounts receivable and certain other assets of
the MTGI business.
11
<PAGE>
The liabilities assigned to, and assumed by, Jordache are all obligations of
MTGI under the contracts and registration included within the assets sold to
Jordache. In consideration of the sale to Jordache of the assets, Jordache paid
the Company consideration consisting of an interest bearing note and cash equal
to (A) the adjusted net book value of the inventory, fixed assets, advances to
vendors and an investment in a dye house facility owned by MTGI, less an amount
equal to the difference between (1) the sum of (a) $80,000 and (b) MTGI's income
before taxes for the period from August 1, 1999 to October 31, 1999 and (2) the
operating expenses of Wear and Wear & Co. International, Inc., the U.S.
marketing company for MTGI and (B) $100,000 for the outstanding stock of Wear
and assumed liabilities described above. All items in (A) and (B) above are
subject to post closing adjustments. In addition, Jordache has paid Cygne a
commission of $600,000 on unfilled orders for products included in the assets
and $400,000 for a noncompete payment in the transaction. The Company received a
note from Jordache in the amount of $2,777,062 bearing interest of 6% per annum
due November 30, 1999 and cash of $500,000. On November 30, 1999 Jordache paid
$1,388,531 of the principal of the note and the Company agreed that the
remaining balance and all accrued interest will be paid on or before December
21, 1999. The Company has used the cash proceeds from the sale to fund a portion
of the transaction expenses and taxes related to the sale, and together with
MTGI retained cash and collections of MTGI accounts receivable, repaid bank
borrowings related to MTGI and other MTGI liabilities.
Effective August 1, 1999 in connection with the amended and restated acquisition
agreement, Cygne entered into an agreement pursuant to which an affiliate of
Jordache managed the Company's Knit business from August 1, 999 to October 31,
1999. In addition Jordache provided financing to Cygne in connection with
certain knit product purchase orders being manufactured by MTGI during this
period.
In connection with the Company's agreement to sell its Knit business, the
Company recorded on the 1999 condensed consolidated statements of operations a
provision for impairment of Knit business assets in the amount of $1,416,000,
consisting of a loss on assets to be sold, transaction costs (including taxes)
and a reduction of the purchase price by the adjusted net income (as defined) of
the Knit business from August 1, 1999 through October 31,1999.
During the third quarter of 1999 and 1998, the Knit business accounted for 79%
and 61%, respectively, of Cygne's net sales. During the nine months of 1999 and
1998, the Knit business accounted for 65% and 69%, respectively, of Cygne's net
sales. If the Knit Disposition had been consummated on January 31, 1999, the
Company would have had pro forma net sales of $4.8 million for the three months
ended October 30, 1999 and pro forma loss from operations of $308,000. Pro forma
net loss for the three months ended October 30, 1999, would have been $286,000
or $0.02 on a per share basis. The Company would have had pro forma net sales of
$17.5 million for the nine months of 1999 and pro forma income
12
<PAGE>
from operations of $9,000 Pro forma net loss for the nine months of 1999 would
have been $16,000 or $0.00 on a per share basis.
During the third quarter of 1999 and 1998, The Limited, Inc. (consisting of The
Limited Stores and Lerner) accounted for 23% and 59%, respectively, of Cygne's
net sales. During the nine months of 1999 and 1998, The Limited, Inc. accounted
for 39% and 58%, respectively, of Cygne's net sales. During the third quarter of
1999 and 1998, The Limited Inc. accounted for 8% and 31% of net sales of the
Knit business, respectively. During the nine months of 1999 and 1998, The
Limited, Inc. accounted for 11% and 43% of the net sales of the Knit business,
respectively. During the third quarter of 1999 and 1998,The Limited Inc.
accounted for 100% of the Woven business. During the nine months of 1999 and
1998, The Limited Inc. accounted for 98% and 86% of the Woven business
respectively. As a result of the sale of the Knit business, the remaining
business will be more dependent on The Limited, Inc. than it currently is.
Although Cygne has a long established relationship with The Limited, Inc., its
key customer, Cygne does not have long-term contracts with any of its customers,
including The Limited, Inc. The Company's future success will be dependent upon
its ability to attract new customers and to maintain its relationship with The
Limited, Inc. There can be no assurance that The Limited, Inc. will continue to
purchase merchandise from the Company at the same rate or at all in the future,
or that the Company will be able to attract new customers. In addition, as a
result of the Company's dependence on The Limited, Inc., The Limited, Inc. has
the ability to exert significant control over the Company's business decisions,
including prices. Furthermore, The Limited, Inc. procures directly a substantial
portion of its apparel product requirements through its sourcing subsidiary, and
such subsidiary will continue to be a major competitor of the Company with
respect to the Company's business with The Limited, Inc. In addition, the
apparel divisions of The Limited, Inc. have formed direct sourcing departments.
The apparel industry is highly competitive and historically has been subject to
substantial cyclical variation, with purchases of apparel and related goods
tending to decline during recessionary periods when disposable income is low.
Retailers, including customers of the Company, are increasingly sourcing private
label products themselves rather than utilizing outside vendors like the
Company. These two factors could have a material adverse effect on the Company's
business.
IMPACT OF THE YEAR 2000
The Year 2000 issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Any of the Company's
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000. This could result in a system failure
or miscalculations causing disruptions of operations, including, among other
things, a temporary inability to process transactions, send invoices or engage
in similar normal business activities.
13
<PAGE>
The Company has determined that it needed to replace portions of its software so
that its computer systems will function properly with respect to dates in the
Year 2000 and thereafter. The Company continues to have communications with its
significant suppliers and large customers to determine the extent to which the
Company's interface systems are vulnerable to those third parties' failure to
remediate their own Year 2000 issues. The Company has upgraded, replaced and
tested its computer systems and equipment so as to be able to operate without
disruption due to Year 2000 issues. The Company presently believes that as a
result of modifications already made to existing software and conversion to new
software, the Year 2000 will not pose significant operations problems for its
computer systems. There can be no assurance that the systems of other companies
on which the Company's systems rely will be timely converted and would not have
a material adverse effect on the Company's systems.
14
<PAGE>
The cost of the Year 2000 systems evaluation and remediation has been funded
through operating cash flows and the Company has expensed these costs. The total
cost to obtain Year 2000 compliance approximated $20,000.
RESULTS OF OPERATIONS
The following table is derived from the Company's condensed consolidated
statements of operations for the three and nine months ended October 30, 1999
and October 31, 1998 and expresses for the periods certain data as a percentage
of net sales:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
OCTOBER 30, OCTOBER 31, OCTOBER 30, OCTOBER 31,
1999 1998 1999 1998
----------- ----------- ----------- -----------
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
====== ====== ====== ======
Gross profit (loss) 5.4 (2.4) 7. 9 (0.5)
Selling, general and administrative
expenses 4.8 8.4 6.3 12.5
Provision for impairment of Knit
business assets 2.3 -- 2.9 --
Amortization of intangibles -- 0.7 -- 1.0
------ ------ ------ ------
(Loss) from operations (1.7) (11.5) (1.2) (14.0)
Interest expense (income), net 0.3 (1.0) 0.8 (0.7)
------ ------ ------ ------
(Loss) before income taxes (2.0) (10.5) (2.0) (13.3)
Provision for income taxes -- 0.8 0.1 0.8
====== ====== ====== ======
Net (loss) (2.0) (11.3) (2.1) (14.1)
====== ====== ====== ======
</TABLE>
THREE AND NINE MONTHS ENDED OCTOBER 30, 1999 COMPARED TO THREE AND NINE MONTHS
ENDED OCTOBER 31, 1998.
Net Sales
Net sales for the third quarter of 1999 were $22.8 million, an increase of $9.6
million or 73% from $13.2 million in the third quarter of 1998. Net sales for
the nine months of 1999 were $49.5 million, an increase of $21.6 million or 77%
from $27.9 million for the comparable period in 1998. The increase in net sales
for the nine months of 1999 compared to the comparable period in 1998 was
primarily attributable to an increase in sales of the Woven division of $8.9
million and the Knit division of $12.7 million.
During the third quarter of 1999 and 1998, the Knit business accounted for 79%
and 61%, respectively, of Cygne's net sales. During the nine months of 1999 and
1998, the Knit business accounted for 65% and 69%, respectively, of Cygne's net
sales.
15
<PAGE>
Woven division sales for the nine months of 1999 were $17.5 million, an increase
of $8.9 million or 104% from $8.6 million for the comparable period in 1998. The
increase in Woven division sales to The Limited, Inc. for the nine months of
1999 compared to the comparable period in 1998 of $9.8 million was offset by a
decrease in sales to other customers other than The Limited, Inc. The Limited,
Inc. accounted for 98% of the Woven division sales for the nine months of 1999
compared to 86% in the comparable period in 1998.
Knit division sales for the nine months of 1999 were $32.0 million, an increase
of $12.7 million or 65% from $19.3 million for the comparable period in 1998.
The increase in Knit division sales for the nine months of 1999 compared
to the comparable period in 1998 was primarily attributable to sales to its new
customer--WalMart.
GROSS PROFIT
The gross profit for the nine months of 1999 was $3.9 million, an increase of
$4.1 million from the gross loss of $0.2 million for the comparable period in
1998.
The Woven division had a gross profit for the nine months of 1999 was $2.4
million compared to a gross loss of $2.0 million in the comparable period in
1998. The gross margin for the nine months of 1999 was 14%. The gross profit
increase for the nine months of 1999 compared to the comparable prior period was
primarily due to its Central American operation earning a profit in 1999
compared to a significant loss in the prior comparable period.
The Knit division had a gross profit for the nine months of 1999 was $1.5
million, a $0.3 million or 17% decrease from the gross profit of $1.8 million in
the comparable period in 1998. The gross margin for the nine months of 1999 was
5% compared to 9% for the comparable prior period in 1998. The decrease in gross
profit and gross margin for the nine months ended October 30, 1999 compared to
the comparable prior period was primarily due to start-up costs associated with
its new customer.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses for the nine months of 1999 were
$3.1 million, a decrease of $0.4 million or 11% from $3.5 million in the
comparable prior period in 1998. The decrease in expense for the nine months of
1999 compared to the comparable periods in 1998 was attributed to a reduction of
expenses of $1.0 million, in Corporate expenses, offset by increases in the
Woven division expenses of $0.5 million and Knit division expenses of $0.1
million.
16
<PAGE>
The Woven division expenses for the nine months of 1999 were $1.5 million, an
increase of $.5 million, or 52% from $1.0 million in the comparable prior period
in 1998. The increase for the nine months of 1999 compared to the comparable
period in 1998 was attributable to increased staff to support the Woven division
sales increase of $8.9 million from the prior comparable period.
The Knit division expenses for the nine months of 1999 were $0.7 million an
increase of $0.1 million in the comparable prior period in 1998. The increase
was attributable to increased travel to service its new customer.
The Corporate expenses for the nine months of 1999 were $0.9 million, a decrease
of $1.0 million, or 51% from $1.9 million in the comparable prior period in
1998. The decrease for the nine months of 1999 were primarily attributable to
the termination of most of the corporate staff in 1998.
INTEREST
Interest expense for the nine months of 1999 was $399,000 as compared to net
interest income of $183,000 for the comparable period in 1998. The increase in
interest expense for the nine months of 1999 compared to the prior comparable
period was primarily attributable to increased borrowings used to fund the Knit
division's operations.
PROVISION FOR IMPAIRMENT OF KNIT BUSINESS ASSETS
In connection with the Company's agreement to sell its Knit business, the
Company recorded on the condensed consolidated statements of operations a
provision for impairment of Knit business assets in the amount of $1,416,000
which consists of a loss on assets to be sold, transaction costs (including
taxes) and a reduction of the purchase price by the adjusted net income (as
defined) of the Knit business from August 1, 1999 through October 31, 1999.
PROVISION FOR INCOME TAXES
The provision for income taxes for nine months of 1999 represents provision for
minimum state income taxes. As of October 30, 1999, based upon tax returns filed
for the fiscal year ended January 30, 1999, the Company reported a net operating
loss carryforward for U.S. Federal income tax purposes of approximately
$112,000,000. If unused, these loss carryforwards will expire in the Company's
taxable years ending 2011 through 2014. Under Section 382 of the U.S. Internal
Revenue Code, if there is a more than 50% ownership change (as defined therein)
with respect to the Company's stock, the Company's loss carryforwards for U.S.
Federal and New York State and City tax purposes would be virtually eliminated.
As of October 30, 1999, based upon tax returns filed for the fiscal year ended
January 30, 1999, the Company reported net operating loss carryforwards for New
York State and City tax purposes (on a separate company basis) of approximately
$72,000,000 and $71,000,000, respectively. If unused, these loss carryforwards
will expire in the Company's taxable years ending in 2011 through 2014.
17
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Prior to 1997, the Company had historically financed its operations primarily
through financing from lending institutions, financing from customers and third
party trade credit facilities, cash from operations and the issuance of debt and
equity securities.
The Company has received proceeds consisting of an interest bearing note and
cash of $5.1 million subject to post closing adjustments, from the consummation
of the sale of the Knit business, consisting of $4.1 million for the assets,
commission of $600,000 and a non-compete payment of $400,000. In addition, the
retained cash and accounts receivable and certain other assets of the MTGI
aggregated were approximately $4.4 million at October 30, 1999. The Company has
used a portion of the cash proceeds from the sale and the MTGI retained cash and
collection of MTGI accounts receivable to fund a portion of the transaction
expenses and taxes related to the sale, repaid bank borrowings related to MTGI
and a portion of other MTGI liabilities. After all Knit business obligations are
paid, the excess of the proceeds and MTGI cash and collections of MTGI accounts
receivable estimated to be $2.6 million will be used for general working
capital purposes.
Since February 1, 1997, the Company has not had a domestic credit facility.
Since that date, Cygne has obtained letters of credit issued from domestic banks
secured by a cash deposit from the Company. At October 30, 1999, the Company had
restricted cash at a bank of $1.6 million as collateral for letters of credit.
In June 1997, an Israeli bank made available to one of the Company's Israeli
subsidiaries a credit facility, which may be terminated by the bank at any time
as to future borrowings, with the following limitations (as modified from time
to time and currently in effect): borrowings against trade accounts receivable
not to exceed $5,500,000; letters of credit not to exceed $3,000,000; overdraft
facility not to exceed $500,000; and bank guarantee for Israeli custom duties
not to exceed $500,000. Borrowings under this facility generally bear interest
at 1.0% over the prime rate, except that borrowings against trade accounts
receivable bear interest at 1.0% over the LIBOR rate. Borrowings under this
facility are subject to certain borrowing base limitations, are due on the
earlier of demand or the maturity date specified by the bank for each borrowing
and are secured by a lien on substantially all of the assets of the Israeli
subsidiary. At October 30, 1999, the outstanding loan under this facility was
$2.8 million and there were no letters of credit. On November 4, 1999, the
outstanding borrowings were repaid and the facility was terminated.
In September 1998, the Israeli bank made an additional $150,000 loan to the
Company's Israeli subsidiary which is also secured by a lien on its assets.
Principal payments under this loan are due in monthly installments of $6,250
through October 2000 and the loan bears interest of 7.2% payable monthly. At
October 30, 1999, the outstanding balance was $75,500. This loan was repaid on
November 4, 1999.
18
<PAGE>
Net cash provided by operating activities for the nine months ended October 30,
1999 was $352,000 compared to net cash used in operating activities of $8.8
million in the comparable period in 1998. The decrease in net cash used in
operating activities was primarily the result of the $2.9 million decrease in
net loss, $4.9 million decrease in working capital requirements and $1.4 million
non-cash provision for impairment of Knit business assets.
The Company's financial performance for the next 12 months will depend upon a
variety of factors, including the amount of sales to The Limited, Inc. If the
Company would incur significant operating losses during the next 12 months, the
Company will face severe liquidity pressures which would adversely affect the
Company's financial condition. The Company is continuing to review its business
operations and could continue to incur additional costs in the future associated
with the restructuring or downsizing of its operations.
19
<PAGE>
PART II OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
a. The Annual Meeting of Stockholders of Cygne Designs, Inc. was held on
October 19, 1999.
b. The Amended and Restated Acquisition Agreement dated as of August 1, 1999
by and among M.T.G.I.--Textile Manufacturers Group (Israel) Ltd., an
Israeli corporation, MBS (Cygne) Company, a Delaware corporation, A.C.
Services, Inc., a Delaware corporation, and Jordache Limited, a Delaware
corporation, was approved and adopted at the Annual Meeting pursuant to
the following vote tabulation.
Votes Broker
Votes For Against Abstentions Non-Votes
--------- ------- ----------- ---------
7,167,731 93,328 4,300 3,785,871
c. The following persons, comprising the entire board of directors, were
elected at the Annual Meeting pursuant to the following vote tabulation:
Name Votes For Votes Withheld
---- --------- --------------
James G. Groninger 10,955,940 95,290
Bernard M. Manuel 10,955,940 95,290
d. The amendment to the Certificate of Incorporation to reduce the number of
shares of Common Stock and Preferred Stock was approved and adopted at the
Annual Meeting pursuant to the following vote tabulation:
Votes Broker
Votes For Against Abstentions Non-Votes
--------- ------- ----------- ---------
7,214,809 45,350 5,200 3,785,871
In accordance with regulations issued by the Securities and Exchange Commission,
stockholder proposals intended for presentation at the fiscal 2000 Annual
Meeting of Stockholders must be received by the Corporate Secretary no later
than February 8, 2000 if such proposals are to be considered for inclusion in
the Company's Proxy Statement.
20
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
10.37 Lease between the Company and 680 Fifth Avenue Associates, L.P.
27 Financial data schedule (for SEC use only)
b. Reports on Form 8-K
November 15, 1999 report announcing that Cygne Designs, Inc. had
consummated the sale of its Knit business to Jordache Limited
21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CYGNE DESIGNS, INC.
(Registrant)
December 13, 1999 By: /s/ Bernard M. Manuel
------------------------------------------------
Bernard M. Manuel, Chairman of the Board
and Chief Executive Officer
December 13, 1999 By: /s/ Roy E. Green
------------------------------------------------
Roy E. Green, Senior Vice President,
Chief Financial Officer and Treasurer
22
EXECUTION COPY
================================================================================
================================================================================
================================================================================
================================================================================
AGREEMENT OF LEASE
between
680 FIFTH AVENUE ASSOCIATES, L.P.,
as landlord
and
CYGNE DESIGN, INC.
as tenant
Dated: November 30, 1999
Premises:
Entire 24th Floor
680 Fifth Avenue
New York, New York
================================================================================
================================================================================
================================================================================
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1. ................................................................... 1
BASIC LEASE INFORMATION AND DEFINITIONS ...................................... 1
1.01 Basic Lease Information ............................................ 1
1.02 Other Definitions .................................................. 2
ARTICLE 2 .................................................................... 2
PREMISES; TERM ............................................................... 2
2.01 Demise ............................................................. 2
2.02 Term ............................................................... 2
2.03 Delivery of Premises ............................................... 2
ARTICLE 3 .................................................................... 3
USE; CONDUCT OF BUSINESS ..................................................... 3
3.01 Use ................................................................ 3
3.02 No Nuisance ........................................................ 3
3.03 Delivery Restrictions .............................................. 4
3.04 Permits ............................................................ 4
3.05 Environmental ...................................................... 4
ARTICLE 4 .................................................................... 5
RENT ......................................................................... 5
4.01 Gross Rent ......................................................... 5
4.02 Base Rent .......................................................... 5
4.03 Manner of Payment .................................................. 5
4.04 Illegality ......................................................... 5
4.05 Occupancy and Transfer Taxes ....................................... 6
ARTICLE 5 .................................................................... 6
INTENTIONALLY DELETED ........................................................ 6
ARTICLE 6 .................................................................... 6
TENANT ELECTRICITY ........................................................... 6
6.01 Tenant Electricity ................................................. 6
6.02 Electric Fixtures .................................................. 7
ARTICLE 7 .................................................................... 7
SERVICES AND REPAIRS ......................................................... 7
7.01 Standard of Operation; Landlord Services ........................... 7
7.02 Access ............................................................. 8
7.03 Cleaning ........................................................... 8
7.04 Service Interruption ............................................... 8
ARTICLE 8 .................................................................... 9
ALTERATIONS .................................................................. 9
8.01 Alterations ........................................................ 9
8.02 Tenant's Property ................................................. 11
8.03 Effect of Landlord's Approval ..................................... 11
8.04 Survival .......................................................... 11
ARTICLE 9 ................................................................... 11
REPAIRS ..................................................................... 11
9.01 Repairs by Landlord ............................................... 11
9.02 Repairs by Tenant ................................................. 11
9.03 Changes in Facilities ............................................. 12
<PAGE>
9.04 Landlord Access .................................................. 12
ARTICLE 10 .................................................................. 12
COMPLIANCE WITH LAWS ........................................................ 12
10.01 Compliance with Laws by Tenant ................................... 12
10.02 Right to Contest ................................................. 13
10.03 Compliance with Laws by Landlord ................................. 13
ARTICLE 11 .................................................................. 13
RIGHT TO PERFORM TENANT COVENANTS ........................................... 13
11.01 Right to Perform Tenant Covenants ................................ 13
ARTICLE 12 .................................................................. 13
ASSIGNMENT, MORTGAGING AND SUBLETTING ....................................... 14
12.01 Assignment; Etc. ................................................. 14
ARTICLE 13 .................................................................. 14
SUBORDINATION ............................................................... 14
13.01 Subordination .................................................... 14
13.02 Attornment ....................................................... 15
13.03 Right to Cure .................................................... 15
ARTICLE 14 .................................................................. 16
BANKRUPTCYT CONDITIONS OF LIMITATION ........................................ 16
14.01 Bankruptcy ....................................................... 16
14.02 Default .......................................................... 17
14.03 Re-entry by Landlord ............................................. 18
14.04 Damages .......................................................... 18
14.05 Right to Injunction .............................................. 19
14.06 Other Remedies ................................................... 20
14.07 Certain Waivers .................................................. 20
14.08 No Waiver ........................................................ 20
14.09 Attorneys' Fees .................................................. 20
14.10 Late Payments .................................................... 20
ARTICLE 15 .................................................................. 21
QUIET ENJOYMENT ............................................................. 21
15.01 Quiet Enjoyment .................................................. 21
ARTICLE 16 .................................................................. 21
RULES OF THE BUILDING ....................................................... 21
16.01 Building Rules ................................................... 21
16.02 Graphics ......................................................... 21
ARTICLE 17 .................................................................. 21
INSURANCE ................................................................... 21
17.01 Compliance with Insurance Standards .............................. 21
17.02 Landlord Insurance ............................................... 22
17.03 Tenant Insurance ................................................. 22
17.04 Waiver of Subrogation ............................................ 22
17.05 Policy Requirements .............................................. 23
ARTICLE 18 .................................................................. 23
NONLIABILITY AND INDEMNIFICATION ............................................ 23
18.01 Exculpation ...................................................... 23
18.02 Indemnity ........................................................ 24
18.03 Limitation of Landlord's Personal Liability ...................... 24
ARTICLE 19 .................................................................. 25
CONDEMNATION ................................................................ 25
ii
<PAGE>
19.01 Condemnation ..................................................... 25
ARTICLE 20 .................................................................. 26
CASUALTY .................................................................... 26
20.01 Casualty ......................................................... 26
20.02 Termination Rights ............................................... 26
20.03 Disclaimer ....................................................... 26
20.04 RPL ss.226 ....................................................... 27
20.05 Cooperation ...................................................... 27
20.06 Arbitration ...................................................... 27
ARTICLE 21 .................................................................. 27
SURRENDER ................................................................... 27
21.01 Surrender ........................................................ 27
21.02 Holding-Over ..................................................... 28
ARTICLE 22 .................................................................. 28
ESTOPPEL CERTIFICATES ....................................................... 28
22.01 Estoppel Certificates ............................................ 28
ARTICLE 23 .................................................................. 29
SECURITY .................................................................... 29
23.01 Security ......................................................... 29
ARTICLE 24 .................................................................. 29
INTENTIONALLY DELETED ....................................................... 29
ARTICLE 25 .................................................................. 29
INTENTIONALLY DELETED ....................................................... 29
ARTICLE 26 .................................................................. 29
MISCELLANEOUS ............................................................... 29
26.01 Successors and Assigns ........................................... 29
26.02 Present Landlord ................................................. 29
26.03 No Offer ......................................................... 30
26.04 Inability to Perform ............................................. 30
26.05 Waiver of Counterclaims and Jury Trial ........................... 30
26.06 Notices .......................................................... 30
26.07 Severability ..................................................... 31
26.08 Amendments ....................................................... 31
26.09 No Joint Venture ................................................. 31
26.10 Brokers .......................................................... 31
26.11 Merger ........................................................... 31
26.12 Applicable Law ................................................... 31
26.13 Shoring; No Dedication ........................................... 31
26.14 Notice of Occurrences ............................................ 32
26.15 Vaults ........................................................... 32
26.16 Window Cleaning .................................................. 32
26.17 Windows .......................................................... 32
26.18 Consents and Approvals ........................................... 32
26.19 Development Rights ............................................... 33
26.20 Business Hours ................................................... 33
26.21 Confidentiality .................................................. 33
26.22 Exhibits ......................................................... 33
26.23 No Recording of Lease ............................................ 33
26.24 Time is of the Essence ........................................... 33
iii
<PAGE>
EXHIBITS
A Description of Land
B Floor Plan
C Building Rules and Regulations
D Form of Notice of Petition and Petition
E Stipulation of Settlement
iv
<PAGE>
Addendum
INDEX OF DEFINED TERMS
Definition Where Defined
- ---------- -------------
Additional Charges ............................................ Section 4.01
Alterations ................................................... Section 8.01
Bankruptcy Code ............................................... Section 14.01
Base Rent ..................................................... Section 1.01
Brokers ....................................................... Section 1.01
Building ...................................................... Section 1.01
Business Days ................................................. Section 26.20
Business Hours ................................................ Section 26.20
Commencement Date ............................................. Section 1.01
Common Areas .................................................. Section 2.01
Consent ....................................................... Section 26.18
Expiration Date ............................................... Section 1.01
Force Majeure ................................................. Section 26.04
Gross Rent .................................................... Section 4.01
Hazardous Materials ........................................... Section 3.06
Holidays ...................................................... Section 26.20
Land .......................................................... Section 1.01
Landlord ...................................................... Section 1.01
Landlord Services ............................................. Section 7.01
Landlord's Agents ............................................. Section 9.02
Legal Requirements ............................................ Section 10.01
Letter of Credit .............................................. Section 23.01
Payment Dates ................................................. Section 5.03
Premises ...................................................... Section 1.01
Qualified Alteration .......................................... Section 8.01
Senior Interest Holder ........................................ Section 13.02
Security ...................................................... Section 23.01
Stipulated Rate ............................................... Section 4.03
Subordinated Mortgage ......................................... Section 13.01
Successor Landlord ............................................ Section 13.02
Tenant ........................................................ Section 1.01
Tenant's Agents ............................................... Section 10.01
Tenant's Property ............................................. Section 8.03
Term .......................................................... Section 1.01
<PAGE>
AGREEMENT OF LEASE
This AGREEMENT OF LEASE, dated as of November 30, 1999 (this "Lease"), is
entered into between Landlord and Tenant, identified and defined below.
The parties to this Lease hereby agree with each other as follows:
ARTICLE 1
BASIC LEASE INFORMATION AND DEFINITIONS
1.01. Basic Lease Information. The following sets forth the basic data with
respect to this Lease and constitute the definitions of the terms used
throughout this Lease:
================================================================================
Defined Term: Bask Information and Definition:
- ------------- --------------------------------
- --------------------------------------------------------------------------------
Landlord: 680 Fifth Avenue Associates, L.P., a New York
limited partnership
- --------------------------------------------------------------------------------
Landlord's Address 680 Fifth Avenue
for Notices: New York, New York 10019
- --------------------------------------------------------------------------------
with a copy to:
Kenneth M. Block, Esq.
Brown Raysman Millstein Felder & Steiner LLP
120 West 45th Street
New York, New York 10036
- --------------------------------------------------------------------------------
Tenant: CYGNE Design, Inc., a Delaware corporation
- --------------------------------------------------------------------------------
Tenant's Address 680 Fifth Avenue
for Notices: New York, New York 10019
- --------------------------------------------------------------------------------
Land: The land more particularly described on Exhibit A
attached hereto.
- --------------------------------------------------------------------------------
Building: The building located on the Land and having the street
address of 680 Fifth Avenue, New York, New York 10019.
- --------------------------------------------------------------------------------
Building Area: 212,675 rentable square feet.
- --------------------------------------------------------------------------------
Premises: Entire 24th floor, as depicted on Exhibit B
- --------------------------------------------------------------------------------
Premises Area: 6,000 rentable square feet
- --------------------------------------------------------------------------------
Term: Term: Commencing on the Commencement Date and ending on
December 31, 2000 (the "Expiration Date"), unless sooner
terminated in accordance with the terms and conditions of
this Lease, and subject to the provisions of Section 2.02.
- --------------------------------------------------------------------------------
Commencement Date: January 1, 2000.
- --------------------------------------------------------------------------------
Base Rent: Commencement Date through $300,000.00 per annum
================================================================================
<PAGE>
- --------------------------------------------------------------------------------
the Expiration Date ($25,000.00 per month)
- --------------------------------------------------------------------------------
Security Deposit: $50,000.00 in cash or irrevocable letter of credit.
- --------------------------------------------------------------------------------
Brokers: Insignia/ESG, Inc. (Landlord)
- --------------------------------------------------------------------------------
1.02 Other Definitions. Set forth on the Addendum attached immediately
behind the Table of Contents at the front of this Lease, is an index of
additional terms used in this Lease. Such terms shall have the respective
meanings specified in the Sections of this Lease set forth after such terms;
provided, however, that the failure to list on said Addendum any term used in
this Lease shall not affect in any way the use of a defined term in this Lease,
and any terms defined in this Lease and used herein shall have the meaning so
defined. In addition, unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the term "including" is not limiting and shall mean
"including, without limitation," "including without being limited to," and words
of like import, and the term "or" has, except where otherwise indicated, the
inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Section, subsection, clause, schedule, and exhibit references are to this
Agreement unless otherwise specified. Any reference in this Agreement to this
Agreement shall include all alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, and supplements, thereto
and thereof, as applicable.
ARTICLE 2
PREMISES; TERM
2.01 Demise. (a) Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, subject to the covenants and agreements contained in this Lease,
the Premises, to the extent same are delivered to Tenant in accordance with
Section 2.03(a).
(b) Tenant shall have, as an appurtenance to the Premises, the nonexclusive
right to use, and permit its invitees to use, in common with others the common
areas of the Building, and if the portion of the Premises on any floor includes
less than the entire floor, the common toilets, corridors and elevator lobby on
such floor (collectively, the "Common Areas") but such rights shall always be
subject to (i) the rights of Landlord; and (ii) such reasonable rules and
regulations from time to time established by Landlord pursuant to Section 16.01.
2.02 Term. The Term of this Lease shall commence on the Commencement Date,
and unless sooner terminated as herein provided, shall terminate on the
Expiration Date. Notwithstanding the foregoing, at any time during the Term
Landlord may elect to terminate this Lease, in its sole discretion, upon thirty
(30) days notice to Tenant provided, however, Landlord agrees that Tenant may
remain in possession of the Premises for a period of thirty (30) days after the
Early Expiration Date. In the event that Landlord elects to terminate this
Lease, the date which falls sixty (60) days after the date of such notice shall
be deemed the "Early Expiration Date", the last day of the Term.
2.03 Delivery of Premises. (a) Tenant acknowledges the delivery of
possession of the Premises.
2
<PAGE>
(b) Tenant agrees that (i) it enters into this Lease without any
representations, warranties or promises by Landlord, its agents,
representatives, employees, servants or any other person in respect of the
Building or the Premises, (ii) no rights, easements or licenses are acquired by
Tenant by implication or otherwise and (iii) Tenant has accepted the Premises
"AS IS" in the condition presently existing and the taking of occupancy of the
whole or any part of the Premises by Tenant is (A) conclusive evidence, as
against Tenant, that Tenant accepts possession of the same and that the Premises
so occupied were in good and satisfactory condition at the time such occupancy
was so taken, and (B) deemed to be an acknowledgment by Tenant that the Premises
are in the condition agreed to by Landlord and Tenant for commencement of the
Term hereof. Landlord shall have no obligation to do any work in order to make
the Premises suitable and ready for occupancy. Any work to be performed by
Tenant shall be subject to compliance with the terms and conditions of this
Lease.
(c) The parties hereto agree that this Article 2 constitutes an express
provision as to the time at which Landlord shall deliver possession of the
Premises to Tenant, and Tenant hereby waives any rights to rescind this Lease
which Tenant might otherwise have pursuant to Section 223-a of the Real Property
Law of the State of New York, or pursuant to any other law of like import now or
hereafter in force.
ARTICLE 3
USE; CONDUCT OF BUSINESS
3.01 Use. (a) Subject to the remaining provisions of this Section 3.01,
Tenant shall use and occupy the Premises during the Term solely for executive
office purposes and for no other purposes.
(b) Tenant covenants and agrees that at all times the business to be
conducted at, through and from the Premises and the kind and quality of services
to be offered in the conduct thereof will be first-class in every respect and
will be in conformity with the highest standards of practice obtained among
"Class A" office buildings in the Borough of Manhattan in the City of New York.
In no event may the Premises be used for any purposes prohibited in the Rules
and Regulations or in any restrictive covenant at any time or from time to time
affecting the Building (at Tenant's request in connection with any request for
consent in a change in use, Landlord will supply Tenant with any applicable
restrictive covenants).
3.02 No Nuisance. (a) Tenant shall not allow, suffer or permit the Premises
or any use thereof to constitute a nuisance or interfere with the safety,
comfort or enjoyment of the Building by Landlord or any other occupants of the
Building or their customers, invitees or any others lawfully in, upon or about
the Building or its environs.
(b) Tenant shall not use the Building or its environs for the display or
sale of merchandise, for performances, for the installation of a platform,
stage, speakers, audio-visual equipment or equipment of any sort for promotion
or advertising or for any other purpose. Tenant shall prevent objectionable
odors, fumes, smoke and vapors, from permeating any part of the Building outside
the Premises.
(c) Tenant recognizes that Landlord has a great interest in securing the
Building and its environs outside the Premises from the sounds and/or visual
effects and/or from odors, fumes, smoke and vapors which may result from
Tenant's operation of its business in the Premises. Accordingly, the requirement
set forth in subsections (b) and (c) pertaining to confining sounds and/or
visual effects and/or odors, fumes, smoke and vapors is of the essence in
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this Lease and failure of the Tenant to comply shall constitute a material
breach of this Lease, entitling Landlord to exercise all remedies provided
hereunder, including without limitation the right to terminate this Lease in
accordance with and subject to the provisions of Article 14. In addition to and
notwithstanding any other rights and remedies of Landlord under this Lease, and
without any grace periods, Landlord shall have the right, in its sole discretion
to require Tenant (i) to cease and desist all activities in the Premises
directly or indirectly resulting in a violation of this Section 3.02 immediately
upon notice of such violation from Landlord, and (ii) to immediately commence
cure of such violation at Tenant's expense.
3.03 Delivery Restrictions. (a) Landlord reserves the right to regulate the
activities of tenants in the Building in regard to deliveries and servicing of
the Premises including without limitation, activities associated with the
freight elevator, and size, type and location of delivery vehicles, and Tenant
agrees to abide by any non-discriminatory regulations of Landlord. In addition,
between the hours of 9:30 a.m. and 11:00 p.m. Monday through Saturday (except
holidays), Tenant shall not use the building passenger elevators or the
pedestrian street for deliveries into or out of the Premises. Usage of the
freight elevator shall be in accordance with Section 7.01(d) hereof
(b) Tenant shall not use the elevators for loads in excess of the elevator
load capacities. Tenant shall obtain information regarding the load capacities
of the elevators from Landlord. In the event Tenant uses any Building elevator
to transport a load in excess of that elevator's capacity, and such use results
in damage to the elevator, including without limitation the mechanical and
electrical systems serving the elevator, Landlord shall repair such elevator and
all Landlord's costs and expenses incurred in connection with such repair shall
be payable to Landlord by Tenant as Additional Charges.
3.04 Permits. If any governmental license or any permit, other than a
certificate of occupancy for the entire Building and Premises, shall be required
for the proper and lawful conduct of Tenant's business or that of any of its
subtenants in the Premises and if failure to secure such license or permit would
in any way adversely affect Landlord or the Building, then Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to Landlord for inspection. Tenant shall at all times comply
with the terms and conditions of each such license or permit. In no event shall
Tenant's failure to procure or maintain such license or permit relieve Tenant
from its obligations under this Lease.
3.05 Environmental. Throughout the Term, Tenant shall not undertake or
permit any Environmental Activity to be undertaken in the Premises or Building
by Tenant's employees, agents, contractors, invitees or guests other than (i) in
compliance with all applicable Legal Requirements and (ii) in such a manner as
shall avoid any liability on the part of Landlord and shall keep the Premises,
Building and Land free from any lien imposed pursuant to any Legal Requirement
in respect of such Environmental Activity. Tenant shall take all necessary steps
to ensure that any Environmental Activity undertaken or permitted at the
Premises is undertaken in a manner as to provide prudent safeguards against
potential risks to human health or the environment. Tenant shall notify Landlord
within 24 hours of the release of any Hazardous Materials (as hereinafter
defined) from or at the Premises which could form the basis of any claim, demand
or action by any party. Landlord shall have the right from time to time to
conduct an environmental audit of the Premises and Tenant shall cooperate in the
conduct of such environmental audit, at no cost to Tenant unless Tenant violates
the provisions of this Section 3.05. If Tenant shall breach the covenants
provided in this Section, then, in addition to any other rights and remedies
which may be available to Landlord under this Lease or otherwise at law,
Landlord may require Tenant to take all actions, or to reimburse Landlord for
the costs of any
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and all actions taken by Landlord, as are necessary or reasonably appropriate to
cure such breach. For purposes of this Section, "Environmental Activity" means
any use, storage, installation, existence, release, threatened release,
discharge, generation, abatement, removal, disposal, handling or transportation
from, under, into or on the Premises of (A) any "hazardous substance" as defined
in ss.10 1(14) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss.9601(14), as amended; (B) any "hazardous waste" as
defined in ss.26-1301(1) of the New York Environmental Conservation Law; (C)
asbestos or asbestos containing materials, or PCBs; (D) petroleum, crude oil or
any fraction thereof, natural gas or synthetic gas used for fuel; and (E) any
additional substances or materials which at such time are classified or
considered to be hazardous or toxic under the laws of the State of New York or
any other Legal Requirements (the materials described in clauses (A) through
(E), other than properly stored and applied cleaning supplies, above are
collectively referred to herein as "Hazardous Materials"). The obligations of
Tenant under this Section 3.05 shall survive the expiration or sooner
termination of this Lease.
ARTICLE 4
RENT
4.01 Gross Rent. The "Gross Rent" shall consist of (a) Base Rent and (b)
additional charges ("Additional Charges") consisting of all other sums of money
that shall become due from and payable by Tenant to Landlord hereunder.
4.02 Base Rent. (a) The Base Rent shall be payable by Tenant in twelve (12)
equal monthly installments in advance on the first day of each calendar month
during the Term commencing on the Commencement Date (appropriately prorated in
the case of the first installment if the Commencement Date is not the first day
of the month) and on the first day of each calendar month thereafter, except
that the first month's installment of Base Rent shall be paid upon execution of
this Lease.
4.03 Manner of Payment. (a) Tenant may pay the Gross Rent by unendorsed
check, subject to collection, payable to Landlord and drawn on a New York City
branch of a bank or trust company located in New York City.
(b) Tenant covenants to pay all Gross Rent as the same shall become due and
payable under this Lease at the times and in the manner provided herein without
notice or demand and without set off, abatement, deduction or counterclaim,
except as expressly provided in this Lease. Landlord shall have the same rights
for default in the payment of Additional Charges as for default in the payment
of Base Rent hereunder. If Tenant shall fail to pay any installment of Base Rent
or Additional Charges after five (5) days of the date due, Tenant shall pay
interest thereon from the date when such Base Rent or Additional Charges became
due and payable to the date of Landlord's receipt thereof at a rate per annum
(the "Stipulated Rate") equal to the lesser of (i) three percentage points (3%)
above the rate from time to time announced by Citibank, N.A. as its "base rate"
to be in effect at its principal office in New York, New York or (ii) the
maximum rate permitted by applicable law.
4.04 Illegality. If any of the Gross Rent payable hereunder shall be or
become uncollectible, reduced or required to be refunded because of any Legal
Requirement, Tenant shall enter into such agreements and take such other actions
(without additional expense to Tenant) as Landlord may reasonably request and as
may be legally permissible to permit Landlord, during the continuance of such
Legal Requirement, to collect the maximum rents as may be legally collectible
(and not in excess of the amounts reserved therefor under this Lease). Upon the
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termination of such Legal Requirement, (a) the Gross Rent shall become and
thereafter be payable in accordance with the amounts reserved herein and (b)
Tenant shall pay to Landlord upon demand, to the extent legally permissible, an
amount equal to (i) the Gross Rent which would have been paid pursuant to this
Lease but for such Legal Requirement less (ii) the rents and payments in lieu of
rent paid by Tenant during the period in which such Legal Requirement was in
effect.
4.05 Occupancy Taxes.. Tenant shall pay to Landlord upon demand any
occupancy tax or tax in lieu thereof related to Tenant' s occupancy of the
Premises.
ARTICLE 5
INTENTIONALLY DELETED
ARTICLE 6
TENANT ELECTRICITY
6.01 Tenant Electricity. (a) The Premises are separately metered for
electricity. Tenant shall pay for the entire supply of electric current to the
Premises directly from Consolidated Edison and any other public utility company
servicing the Building.
(b) Landlord shall permit such feeders, risers, wiring, conduit, piping and
other electrical facilities serving the Premises to be used by Tenant to the
extent available, suitable and safe. Tenant's use of electrical energy shall
never exceed the capacity of the then existing feeders to the Building or the
risers, conduit, piping or wiring installations therein as properly allocable to
the Premises based on usable square foot area of the Premises and at no time
shall Tenant's electrical usage exceed that for which the Premises have been
designed, which is presently six (6) volt-amps per rentable square foot
(connected). Upon Landlord's consent to expand the electrical capacity of the
Premises, which consent shall not be unreasonably withheld if, in Landlord's
judgment, the same will not (i) create a hazardous condition, (ii) entail
excessive repairs or expense to Landlord, (iii) interfere with or disturb other
tenants other than to a de minimis extent, (iv) preclude other tenants from
proportionately expanding their electrical or (v) violate any Legal Requirement
or the provisions of any insurance policy with respect to the Premises or the
Building, Landlord shall provide and install additional risers required to
supply Tenant's electrical requirements and all other equipment necessary in
connection therewith and the reasonable cost thereof shall be paid by Tenant
within thirty (30) days after being billed therefor. Landlord may require Tenant
to furnish to Landlord such security as Landlord shall reasonably deem necessary
to assure payment for any such work prior to Landlord commencing the same.
(c) Landlord shall have no liability to Tenant for any loss, damage or
expense sustained or incurred by reason of any change, failure, inadequacy,
unsuitability or defect in the supply or character of the electrical energy
furnished to the Premises or if the quantity or character of the electrical
energy is no longer available or suitable for Tenant's requirements, except for
any actual damage suffered by Tenant by reason of any such failure, inadequacy
or defect caused by the gross negligence or willful misconduct of Landlord or
Landlord's agents, and then only after actual notice of such failure, inadequacy
or defect and, in such event, Tenant, and those claiming by or through Tenant,
waive, to the fullest extent permitted by applicable law, any consequential
damages resulting therefrom. Tenant shall be responsible for any repair,
maintenance or replacement of any electrical panel board, and all wires,
conduit, piping and wiring located within and serving the Premises, all at
Tenant's expense; provided, however, that Landlord shall perform any repairs to
such panelboard, conduit, piping or wiring to the extent
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same may, in Landlord's reasonable judgment, impact upon Building electrical
systems and Tenant shall pay Landlord's reasonable charges for such repairs
within thirty (30) days after demand by Landlord.
6.02 Electric Fixtures. Tenant shall furnish and install, at Tenant's sole
expense, all lighting, tubes, lamps, starters, bulbs and ballasts required in
the Premises.
ARTICLE 7
SERVICES AND REPAIRS
7.01 Standard of Operation; Landlord Services. Landlord shall operate and
maintain the Building in a manner consistent with the standards of other
first-class office buildings in the Borough of Manhattan, and, subject to
curtailment as required by Legal Requirements, shall furnish to Tenant
commencing on the Commencement Date with the following services ("Landlord
Services") except as provided below:
(a) reasonably adequate supplies of (i) cold domestic water and (ii)
hot water to the core lavatories on the floor on which the Premises are
located, in either case, for ordinary lavatory, cleaning and drinking use;
(b) heat, ventilation and air conditioning (between May 19 and
September 15th only) on Business Days (as defined in Section 26.20) during
Business Hours (as defined in Section 26.20); and upon written request by
Tenant received by Landlord prior to 3:00 P.M. on the Business Day
immediately preceding the day for which such service is requested, Landlord
shall furnish air conditioning and heating at times other than the times
specified above, in which event Tenant shall pay to Landlord Landlord's
then established reasonable charge for furnishing such services within
thirty (30) days after demand therefor; said air conditioning and heating
services shall be provided by a system designed and capable of maintaining,
within tolerances normal in first-class office buildings, interior
conditions of a maximum of 72F for heating and a minimum of 78F for cooling
as per the New York State Energy Conservation Code. The foregoing design
conditions shall be based on an occupancy of not more than one (1) person
per one (100) square feet within a standard office layout approved by
Landlord in accordance with Section 8.01, and combined lighting and
standard electrical load not to exceed 5 volt-amps per rentable square foot
unless energy and/or water conservation laws or requirements of public
authorities, shall mandate for any reduction in operation below said
criteria, in which case such equipment shall be operated in accordance
therewith. Tenant, at Tenant's sole cost and expense, shall be allowed to
install a supplemental air conditioning system (air cooled only) using the
southwest window of the Premises as a supply port. It is understood that
Landlord at present has no ability to deliver condenser water to the
Premises;;
(c) cleaning service for the Premises, except any portion thereof used
for preparing and dispensing of food or beverages (other than pantries),
including, without limitation, flues and related equipment, or as computer
areas, in accordance with such cleaning specifications as Landlord may
adopt for general application to tenants of the Building and communicate on
reasonable notice to Tenant which cleaning specifications shall be (i)
consistent with the character of the Building as a first-class office
building and (ii) implemented on a consistent basis for all such tenants;
and
(d) (i) nonexclusive passenger elevator service to the Premises
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24 hours per day and (ii) freight elevator service to the Premises on a
first come-first served basis during the hours of 8:00 A.M. to 10:00 A.M.,
10:30 A.M. to 12:00 P.M., 2:00 P.M. to 3:00 P.M., and from 3:30 P.M. to
4:45 P.M. on Business Days (as defined in Section 26.20) and, at times
prior to 8:00 A.M. or after 5:00 P.M. on Business Days or on days other
than Business Days, on a reserved basis provided that Tenant pay to
Landlord its then established reasonable charge therefor.
7.02 Access. Subject to the terms and conditions of this Lease, Landlord
shall provide Tenant with reasonable access to the Premises on a 24-hour,
365/366-day year basis.
7.03 Cleaning (a) Landlord's cleaning contractor and its employees shall
have access to the Premises, and the use of Tenant's light, power and water
therein, at all times, except that such access shall not be made in a manner
which would unreasonably interfere with the operation of Tenant's business.
(b) Landlord shall have the right to cause any area in the Premises used
for the storage, preparation, service or consumption of food or beverages
(including pantries) to be exterminated for vermin by a reputable extermination
contractor selected by Landlord with such frequency as shall be reasonably
satisfactory to Landlord and Tenant shall pay the cost thereof (which cost shall
be commercially reasonable) to Landlord within thirty (30) days after demand.
Tenant shall pay to Landlord within thirty (30) days after demand Landlord's
then reasonably established charges for (i) cleaning work in the Premises (not
performed by employees of Tenant) or the Building required because of (A) misuse
or neglect on the part of Tenant or Tenant's agents, contractors, employees,
licensees or invitees, (B) use of portions of the Premises for the storage,
preparation, service or consumption of food or beverages (other than pantries),
reproduction, data processing or computer operations, private lavatories or
toilets or other special purposes requiring greater or more difficult cleaning
work than office areas, (C) interior glass surfaces (except the interiors of
exterior Building windows), or (D) increases in frequency or scope in any of the
items of cleaning service requested by Tenant; (ii) removal from the Premises
and the Building of (A) so much refuse and rubbish of Tenant as shall exceed
that normally accumulated in the daily routine of ordinary business office
occupancy and (B) all of the refuse and rubbish of any eating facilities
requiring special handling; and (iii) additional cleaning work in the Premises
or the Building occasioned by after hours use of the Premises on other than an
occasional basis.
7.04 Service Interruption. (a) Subject to Section 26.04(b), Landlord shall
not be liable for damages to either person or property nor shall Landlord be
deemed to have evicted Tenant nor shall there be any abatement of Gross Rent nor
shall Tenant be relieved from performance of any covenant on its part to be
performed hereunder by reason of (i) failure by Landlord to furnish Landlord
Services due to Force Majeure, (ii) breakdown of equipment or machinery utilized
in supplying any Landlord Service or (iii) cessation of any Building Service due
to causes or circumstances beyond the boundaries of the Land. Landlord shall use
reasonable diligence to make such repairs as may be required to machinery or
equipment within the Building to provide restoration of any Building Service
and, where the cessation or interruption of such Building Service has occurred
due to circumstances or conditions beyond the Land boundaries, to cause the same
to be restored by diligent application or request to the provider.
(b) In addition to any remedies which Landlord may have under this Lease,
if Tenant shall default in the payment of any Additional Charges payable
pursuant to this Article 7 in respect of additional or overtime services
provided by Landlord, then, for so long as such
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default remains uncured, Landlord shall not be obligated to furnish Tenant any
such additional or overtime services.
ARTICLE 8
ALTERATIONS
8.01 Alterations. (a) Tenant shall not make or allow to be made any
alterations or physical additions, including, without limitation, fixtures, to
the Premises, other than normal painting, carpeting, wall-coverings and office
decorations, (collectively, "Alterations") or place safes, vaults, filing
systems, libraries or other heavy furniture or equipment, within the Premises
without first obtaining the consent of Landlord, which consent shall not be
unreasonably withheld in the case of an Alteration (a "Qualified Alteration")
which (i) has no adverse effect on the Building's structure or systems,
including, without limitation, the mechanical, electrical, plumbing, HYAC, fire
safety, fife protection or elevator systems of the Building (collectively,
"Building Systems") (ii) is not visible from the exterior of the Premises; (iii)
does not result in a violation of, or require a change in, any certificate of
occupancy for the Building; (iv) does not affect any area of the Building
outside of the Premises; (v) does not adversely affect the curtain wall of the
Building; (vi) does not in Landlord's reasonable judgment, adversely affect the
character or value of the Building. Notwithstanding the foregoing, (i) Tenant
may perform non-structural alterations estimated to cost less than Twenty
Thousand Dollars ($20,000) without Landlord's consent provided said alterations
do not adversely affect Building Systems.
(b) Landlord shall be entitled to retain independent consultants to review
the plans and specifications for and the progress of construction of Alterations
and to reimbursement from Tenant, within thirty (30) days after request
therefor, for all of the reasonable fees of such consultants and other
reasonable out-of-pocket costs incurred by Landlord in connection with such
proposed Alteration. Tenant shall, prior to commencing any work in the Premises
in connection with any Alteration, the nature of which would under good
construction industry practice or Legal Requirements involve the preparation of
plans and specifications, furnish Landlord with three (3) sets of complete plans
and specifications for such work. Landlord agrees to use reasonable efforts to
respond to Tenant's request for consent to its plans and specifications for
Alterations within (i) ten (10) Business Days after submission thereof to
Landlord in the case of the original submission and (ii) five (5) Business Days
in the case of any resubmission of disapproved plans. Landlord reserves the
right to disapprove any plans and specifications in part, to reserve approval of
items shown thereon pending its review and approval of other plans and
specifications, and to condition its approval upon Tenant making reasonable
revisions to the plans and specifications or supplying additional information.
Any disapproval given by Landlord shall be accompanied by a statement of the
reason(s) for such disapproval. Any Alterations for which consent has been
received shall be performed in accordance with plans and specifications approved
by Landlord, and no material amendments or additions thereto shall be made
without the prior consent of Landlord, which consent shall be granted or
withheld in accordance with the same criteria applied in granting initial
consent to the applicable Alterations.
(c) Tenant agrees that all Alterations shall at all times comply with all
Legal Requirements and the Building Rules and Regulations. Tenant, at its
expense, shall (i) obtain all necessary municipal and other governmental
permits, authorizations, approvals and certificates for the commencement and
prosecution of such Alterations and for final approval thereof upon completion,
(ii) deliver copies thereof to Landlord and (iii) cause all Alterations to be
performed in a good and first-class workmanlike manner, using new materials and
equipment at least equal in quality to a first-class office installation.
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(d) Landlord, at Tenant's expense and upon request of Tenant, shall join in
any applications for any permits, approvals or certificates required to be
obtained by Tenant in connection with any permitted Alteration (provided that
the provisions of the applicable Legal Requirement require that Landlord join in
such application) and shall otherwise cooperate with Tenant in connection
therewith, provided that if Landlord shall incur any cost or liability in
connection therewith, Tenant shall reimburse Landlord for all such reasonable
out-of-pocket costs and expenses within ten (10) Business days after receipt of
Landlord's invoice therefor.
(e) Tenant agrees that all Alterations shall be promptly commenced and
completed and shall be performed so as not to interfere with the occupancy of
any other tenant or delay Landlord in the maintenance, cleaning, repair, safety,
management or operation of the Building or the space of any other tenant in the
Building, and if any additional expense shall be incurred by Landlord as a
result of Tenant's making of any Alterations, Tenant shall pay such reasonable
out-of-pocket additional expense within thirty (30) days after demand therefor.
(f) No Alterations estimated to cost more than $50,000 (as reasonably
estimated by Landlord's architect, licensed professional engineer, general
contractor or consultant) shall be constructed in any twelve (12) month period
(i) except under the supervision of a licensed architect or licensed
professional engineer reasonably satisfactory to Landlord and (ii) prior to
Tenant delivering or causing its general contractor or construction manager to
deliver to Landlord either (y) a performance bond and a labor and materials
payment bond (issued by a surety company reasonably satisfactory to Landlord and
licensed to do business in the State of New York) each in an amount equal to one
hundred twenty-five percent (125%) of such estimated cost and otherwise in form
reasonably satisfactory to Landlord or (z) such other security as shall be
reasonably satisfactory to Landlord. Tenant shall keep financial or cost
accounting records of all Alterations and shall, within ten (10) Business Days'
demand by Landlord, furnish to Landlord copies thereof
(g) All contractors sought to be retained by Tenant identified in a list to
be provided to Landlord, shall be subject to the prior approval of Landlord,
which shall not be unreasonably withheld or delayed. Tenant shall not permit the
use of any contractors, labor, material or equipment in the performance of any
work if such use, in Landlord's judgment (reasonably exercised), will disturb
harmony with any trade engaged in performing any other work in and about the
Building or contribute to any labor dispute. Landlord may require the use of
designated Building Engineers or Contractors at competitive pricing for
specified work which will or may affect any Building Systems (e.g., Class E
System).
(h) Tenant shall indemnify and hold Landlord harmless from and against all
costs (including, without limitation, reasonable attorneys' fees and
disbursements), losses, liabilities or causes of action arising out of or
relating to any Alteration, including, without limitation, any mechanics' or
materialmen's liens asserted in connection with such Alteration.
(i) Should any mechanics' or other liens be filed against the Building or
any portion of the Building by reason of Tenant's acts or omissions or because
of a claim against Tenant, Tenant shall cause the same to be canceled or
discharged of record by bond or otherwise within twenty (20) Business Days after
notice from Landlord. If Tenant shall fail to cancel or discharge said lien or
liens within said twenty (20) Business Day period, Landlord may cancel or
discharge the same and upon Landlord's demand Tenant shall reimburse Landlord
for all reasonable costs (including, without limitation, reasonable legal fees
and expenses) incurred in canceling or discharging such liens.
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(j) Throughout the making of all Alterations, Tenant, at its expense, shall
carry or cause to be carried (i) worker's compensation insurance in statutory
limits covering all persons employed in connection with such Alterations, (ii)
builder's risk property insurance, completed value form, covering all physical
loss (including any loss of or damage to supplies, machinery and equipment) in
connection with the making of such Alterations and (iii) commercial general
liability insurance, with completed operations endorsement, covering any
occurrence in or about the Building in connection with such Alterations, which
comprehensive liability insurance policy shall satisfy the requirements of
Sections 17.03 and 17.05. Tenant shall be obligated to furnish Landlord with
evidence reasonably satisfactory to Landlord that such insurance is in effect
before the commencement of such Alterations and, on request, at reasonable
intervals thereafter.
8.02 Tenant's Property. Subject to Section 21.01 hereof, all Alterations
shall be and remain part of the Premises and be deemed the property of Landlord
except such trade fixtures, furniture and equipment as are installed at the
expense of Tenant and which may be removed without material damage to the
Premises (collectively, "Tenant's Property"). Tenant may remove Tenant's
Property from the Premises during the Term and Tenant shall repair, or shall
reimburse Landlord within thirty (30) days of demand for the reasonable cost of
repairing, any damage to the Premises or the Building occasioned by such
removal. Any structural repairs or repairs to Building Systems necessitated by
the removal of Tenant's Property shall be performed by Landlord and Tenant shall
reimburse Landlord for the reasonable cost thereof within thirty (30) days after
demand.
8.03 Effect of Landlord's Anproval. Landlord's approval of plans or
specifications or consent to the making of Alterations in the Premises shall not
be deemed to be (i) an agreement by Landlord that the contemplated Alterations
comply with any Legal Requirements, or the certificate of occupancy for the
Building; (ii) an approval of the sufficiency, completeness or effective
coordination of the proposed Alteration; or (iii) a waiver by Landlord of
compliance by Tenant with any of the other terms of this Lease.
8.04 Survival. Tenant's obligations under this Article 8 shall survive the
expiration or sooner termination of this Lease.
ARTICLE 9
REPAIRS
9.01 Repairs by Landlord. Landlord shall make all repairs, interior or
exterior, structural or non-structural, ordinary or extraordinary, needed to
keep the Building (including the Premises and the Building systems) in
reasonably good order and repair, excluding, however, repairs which Tenant is
obligated to make pursuant to Section 9.02 or the other terms of this Lease. No
liability of Landlord to Tenant shall accrue under this Section 9.01 with
respect to any repair within the Premises or to any Building System servicing
the Premises unless and until Tenant has given notice to Landlord of the
specific repair required to be made or of the failure properly to furnish any
Landlord's Services and Landlord's failure, subject to Force Majeure, thereafter
promptly to remedy the same.
9.02 Repairs by Tenant. Tenant, at its expense, shall take good care of and
maintain the Premises, including, without limitation, (a) the Initial
Alterations and any Alterations, (b)the internal air distribution system for the
Premises to the point at which same connects to the main distribution duct for
the Premises, (c) the internal electrical system servicing
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the Premises, (d) all plumbing fixtures and lines in and serving the Premises
exclusively to the point at which same join the main vertical risers for the
Building, (e) the life safety and emergency power systems to the point at which
same join the main vertical risers for the Building and (f) Tenant's Property;
provided, however, that Tenant shall only be responsible for exterior or
structural repairs if the need for same arises out of (i) the making,
installation, use, operation or existence of Alterations by or on behalf of
Tenant, (ii) the moving of Tenant's Property in or out of the Building or the
Premises, (iii) the negligence of Tenant or any other occupant of the Premises
or any of Tenant's employees, contractors, agents, licensees or invitees or
their manner of use or occupancy of the Premises, subject, however, in the case
of fire or other insured casualty, to the waiver set forth in Section 17.04, or
(iv) Tenant's compliance or non-compliance with Legal Requirements in accordance
with Section 10.01. Any repairs to the Building or Building Systems (including
those elements of the Building Systems described in clauses (a) through (e)
above) shall be performed by Landlord at Tenant's expense (including
reimbursement of reasonable out-of-pocket costs to Landlord), unless Landlord
elects by notice to Tenant to have Tenant perform such repairs. Tenant shall
promptly notify Landlord of the need for structural repairs, repairs to the
exterior (including exterior glass) of the Building, and/or repairs to any
Building Systems which are the responsibility of Tenant. In no event shall
Tenant be required to make, be responsible for, or pay for any repairs which are
required as a result of the negligent act or negligent omission or willful
misconduct of Landlord or Landlord's agents, servants, employees or contractors
(collectively, "Landlord's Agents").
9.03 Changes in Facilities. Landlord reserves the right, at any time and
without any liability to Tenant, to make changes in or additions to the Building
but not the Premises except as hereinafter provided, including, without
limitation, any changes to the Common Areas, as it may deem necessary or
desirable provided that (a) any such change does not deprive Tenant of access to
the Premises, (b) such change does not materially interfere with the use of or
area of the Premises and does not affect the first-class nature of the Building
and (c) Landlord uses reasonable efforts to minimize the extent and duration of
any interference with the use of the Premises. Landlord may at its expense
install and maintain pipes, fans, ducts, shafts, wires and conduits within or
through the walls, floors or ceilings of the Premises. Landlord shall use
reasonable efforts to minimize any interference with Tenant's use and occupancy
thereof as a result of such installation and maintenance.
9.04 Landlord Access. Except as provided for in Section 7.03, Landlord and
Landlord's Agents shall have the right, upon reasonable prior notice to Tenant
(except in an emergency, in which case Landlord shall use reasonable efforts to
provide such notice as is possible under the circumstances), to enter the
Premises to inspect, clean or perform such work as Landlord may reasonably deem
necessary or to exhibit the Premises to prospective purchasers, mortgagees or,
during the last eighteen (18) months of the Term, tenants, or for any other
purpose as Landlord may deem necessary or desirable. Landlord shall use
reasonable efforts to minimize the adverse effect on Tenant of any entry by
Landlord on the Premises for any reason. Tenant shall not be entitled to any
abatement or reduction of Gross Rent by reason of such entry.
ARTICLE 10
COMPLIANCE WITH LAWS
10.01 Compliance with Laws by Tenant. Tenant, at its expense, shall comply
with all (a) laws and ordinances and all rules, orders or regulations (present,
future, ordinary, extraordinary, foreseen or unforeseen) of any governmental
authority or of any insurer with respect to the use and occupancy of the
Premises, and (b) covenants, conditions, restrictions, easements and encumbrance
affecting the Premises provided same have been delivered to Tenant
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(collectively, "Legal Requirements"), and Tenant shall make all improvements
(subject to the terms and conditions of Article 8 hereof) which (a) are
necessitated by a condition which has been created by, or at the instance of,
Tenant (including, without being limited to, any Alterations), (b)are
attributable to the use, or manner of use of the Premises, including, without
limitation, use as a "place of public accommodation" as defined in the Americans
with Disabilities Act, (c) are necessitated by reason of a breach of Tenant's
obligations hereunder, or (d) are occasioned, in whole or in part, by any
negligence of Tenant or Tenant's Agents, or any person claiming by, through or
under Tenant or Tenant's Agents.
10.02 Right to Contest. Tenant, at its expense, after notice to Landlord,
may contest, by appropriate proceedings prosecuted diligently and in good faith,
the validity or applicability of any Legal Requirement, provided that: (a)
Landlord shall not be subject to civil or criminal penalty or to prosecution for
a crime, nor shall the Building or any part thereof be subject to being
condemned or vacated, or subject to any lien or encumbrance, by reason of
noncompliance or otherwise by reason of such contest; (b) before the
commencement of such contest, Tenant shall furnish to Landlord the bond of a
surety company reasonably satisfactory to Landlord, in form, substance and
amount reasonably satisfactory to Landlord, and shall indemnify Landlord against
the cost of such compliance and liability resulting from or incurred in
connection with such contest or non-compliance (including the costs and expenses
in connection with such contest); (c) such non-compliance or contest shall not
constitute or result in any violation of a Superior Mortgage or Superior Lease
or if any Senior Interest Holder shall condition such non-compliance or contest
upon the taking of action or furnishing of security by Landlord, such action
shall be taken and such security shall be furnished at the expense of Tenant;
and (d) Tenant shall keep Landlord regularly advised as to the status of such
proceedings. Landlord shall be deemed subject to prosecution for a crime if
Landlord, a Senior Interest Holder or any of their officers, directors,
partners, shareholders, agents or employees is charged with a crime of any kind
whatever unless such charge is withdrawn five (5) days before such party is
required to plead or answer thereto.
10.03 Compliance with Laws by Landlord. Landlord, at its expense, shall
comply with all Legal Requirements applicable to the Premises and the Building
which are not the obligation of Tenant pursuant to Section 10.01, but may defer
compliance so long as Landlord shall be contesting in good faith by appropriate
proceedings the validity or applicability thereof. Landlord may also, but shall
not be required to, contest Legal Requirements with which Tenant is required to
comply pursuant to Section 10.01.
ARTICLE 11
RIGHT TO PERFORM TENANT COVENANTS
11.01 Right to Perform Tenant Covenants. If Tenant shall fail to perform
any of its obligations under this Lease, Landlord may perform the same at the
reasonable expense of Tenant (a) immediately and without notice in the case of
emergency or in case such failure unreasonably interferes with the use of space
by any other tenant in the Building or with the provision of Landlord's Services
or may result in a violation of any Legal Requirement and (b) in any other case
if such failure continues after ten (10) days from the date of the giving by
Landlord to Tenant of notice of Landlord's intention so to perform the same,
unless Tenant has commenced and is diligently prosecuting the performance of
such obligation. Tenant's obligations under this Section shall survive the
expiration or sooner termination of this Lease.
ARTICLE 12
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ASSIGNMENT, MORTGAGING AND SUBLETTING
12.01 Assignment: Etc. Neither this Lease nor the term and estate hereby
granted, nor any part hereof or thereof, shall be assigned or otherwise
transferred, and neither the Premises nor any part thereof shall be subleased or
be encumbered in any manner by reason of any act or omission on the part of
Tenant without the prior consent of Landlord which may be withheld in Landlord's
sole discretion. Transfer of a controlling interest in the stock or other
ownership interests of Tenant shall be deemed to be a transfer of this Lease.
ARTICLE 13
SUBORDINATION
13.01 Subordination. (a) This Lease and Tenant's rights hereunder are
subject and subordinate to: (i) all present and future ground leases, operating
leases, superior leases, overriding leases and underlying leases and grants of
term of the Building or any portion thereof (collectively, including the
applicable items set forth in clause (iv) of this subsection (a), "Superior
Leases") (ii) all mortgages and building loan agreements, including leasehold
mortgages and spreader and consolidation agreements, which may now or hereafter
affect all or any portion of the Building or any Superior Lease (collectively,
including the applicable items set forth in clauses (iii) and (iv) of this
subsection (a), "Superior Mortgages"), whether or not a Superior Mortgage shall
also cover other lands or buildings or leases, except that a mortgage on the
Land only shall not be a Superior Mortgage so long as there is in effect a
Superior Lease which is not subordinate to such mortgage; (iii) each advance
made under any Superior Mortgage; and (iv) all renewals, modifications,
replacements, substitutions and extensions of any Superior Lease or Superior
Mortgage. The provisions of this subsection shall be self-operative and no
further instrument of subordination shall be required.
(b) Tenant shall, within ten (10) days after request therefor, execute and
deliver, at its expense, any instrument, in recordable form if requested, that
Landlord, any holder of a Superior Mortgage (a "Superior Mortgagee") or any
lessor under a Superior Lease (a "Superior Lessor") may reasonably request, from
time to time, to evidence and confirm the subordination provided in subsection
(a) of this Section 13.01.
(c) Any Superior Mortgagee may elect that this Lease shall have priority
over the mortgage held by such Superior Mortgagee (such mortgage, upon such
election by the applicable Superior Mortgagee, is referred to herein as a
"Subordinated Mortgage") and, upon notification by such Superior Mortgagee to
Tenant, this Lease shall be deemed to have priority over such Subordinated
Mortgage, whether this Lease is dated prior to or subsequent to the date of such
Subordinated Mortgage and, to the extent that such an election is made by a
Superior Mortgagee, the provisions of Section 13.01 (a) hereof shall not be
applicable to such Subordinated Mortgage (except as otherwise provided), but
such Superior Mortgagee shall remain a Superior Mortgagee for the purpose of all
other provisions of this Lease. Tenant and such Superior Mortgagee shall
promptly, upon the notification by such Superior Mortgagee, execute and deliver
an instrument in recordable form to evidence and confirm such priority.
(d) If, in connection with obtaining, continuing or renewing financing for
which the Building, the Land or the interest of the lessee under any Superior
Lease represents collateral, in whole or in part, the Superior Mortgagee or
proposed Superior Mortgagee (including any which may elect that this Lease shall
have priority over such Superior Mortgage) shall request reasonable
modifications of this Lease as a condition of such financing, Tenant shall
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not unreasonably withhold its consent thereto, provided that such modifications
do not increase Tenant's obligation to pay Base Rent or Additional Charges,
shorten or lengthen the Term and do not materially increase any other
obligations or materially diminish any other rights of Tenant under this Lease.
13.02 Attornment. (a) If at any time any Superior Lessor, Superior
Mortgagee (each a "Senior Interest Holder") or any other person or the
successors or assigns of any of the foregoing (such Senior Interest Holder and
any such other person being herein collectively referred to as "Successor
Landlord") shall succeed to the rights of Landlord under this Lease, Tenant
agrees, at the election and upon the request of any such Successor Landlord,
from time to time, fully and completely to attorn to and recognize any such
Successor Landlord as Tenant's landlord under this Lease upon the then executory
terms of this Lease. The foregoing provisions of this Section 13.02 shall inure
to the benefit of any such Successor Landlord, shall apply notwithstanding that,
as a matter of law, this Lease may terminate upon the termination of the
Superior Lease and shall be self-operative upon any such request, and no further
instrument shall be required to give effect to said provisions. Upon the request
of any such Successor Landlord, Tenant shall execute and deliver, from time to
time, instruments reasonably satisfactory to any such Successor Landlord, in
recordable form if requested, to evidence and confirm the foregoing provisions
of this Section 13.02, acknowledging such attornment and setting forth the terms
and conditions of its tenancy.
(b) Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between such Successor Landlord and Tenant upon all of
the then executory terms of this Lease except that such Successor Landlord shall
not be: (i) liable for any act or omission or negligence of any prior Landlord
(other than to cure any default of a continuing nature); (ii) subject to any
counterclaim, defense or offset which theretofore shall have accrued to Tenant
against any prior Landlord; (iii) bound by the payment of any Base Rent or
Additional Charges for more than one month in advance (unless actually received
by such Successor Landlord); (iv) bound by any modification or amendment of this
Lease unless (A) such modification or amendment shall have been approved in
writing by the Senior Interest Holder, of which Tenant has been given notice,
through or by reason of which the Successor Landlord shall have succeeded to the
rights of Landlord under this Lease or (B) the modification or amendment shall
have occurred prior to the creation of such Senior Interest; (v) obligated to
construct any improvements or to grant any credit toward the cost of any
improvements; (vi) in the event of damage to the Building by fire or other
casualty, obligated to repair the Premises or the Building or any part thereof
beyond such repair as may be reasonably accomplished from the net proceeds of
insurance actually made available to Landlord; or (vii) in the event of partial
condemnation, obligated to repair the Premises or the Building or any part
thereof beyond such repair as may be reasonably accomplished from the net
proceeds of any award actually made available to Landlord as consequential
damages allocable to the part of the Premises or the Building not taken. Nothing
contained in this Section 13.02 shall be construed to impair any right otherwise
exercisable by any such Successor Landlord.
13.03 Right to Cure. If any act or omission by Landlord shall give Tenant
the right, immediately or after the lapse of time, to cancel or terminate this
Lease in whole or in part or to claim such cancellation or termination on the
basis of a partial or total eviction, Tenant shall not exercise any such right
until (a) it shall have given written notice of such act or omission to each
Senior Interest Holder whose name and address shall have been previously
furnished to Tenant, and (b) a reasonable period for remedying such act or
omission shall have elapsed following such notice and following the time when
such Superior Mortgagee or Superior Lessor shall have become entitled under such
Superior Mortgage, Subordinated Mortgage or Superior
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Lease, as the case may be, to remedy the same (which reasonable period shall be
not less than sixty (60) days and, if such act or omission is of such a nature
that it cannot be completely remedied within such sixty (60) day period, such
reasonable period shall be such longer period as may be required provided such
Senior Interest Holder shall have within such sixty (60) day period given Tenant
notice of its intention to remedy such act or omission, and has commenced and
thereafter continues to act upon such intention). It is agreed, however, that if
such Senior Interest Holder requires possession of the Premises in order to
effect a remedy, then such Senior Interest Holder shall have such further period
of time as is necessary to obtain possession in addition to the reasonable
period referred to in the preceding sentence, provided such Senior Interest
Holder shall give Tenant notice of its intention to obtain possession and remedy
such act or omission and shall promptly commence and continue to pursue, through
appointment of a receiver or foreclosure, summary proceedings or other
procedures, steps necessary to obtain possession. For the purposes of this
Section 13.03, if there shall be more than one Senior Interest Holder, the
provisions of this Section 13.03 shall be applicable only to the holder of the
Superior Mortgage or the Subordinated Mortgage which constitutes the first
mortgage lien on the Building.
ARTICLE 14
BANKRUPTCY; CONDITIONS OF LIMITATION
14.01 Bankruptcy. (a) In the event a petition is filed by or against Tenant
under the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101-1330, as amended,
or any successor thereto (the "Bankruptcy Code"), Tenant, as debtor and
debtor-in-possession, and any trustee who may be appointed, agree to adequately
protect Landlord as follows: (i) to pay monthly in advance on the first day of
each month as reasonable compensation for use and occupancy of the Premises an
amount equal to all Base Rent and Additional Charges due pursuant to this Lease;
(ii) to perform each and every obligation of Tenant under this Lease until such
time as this Lease is either rejected or assumed by order of a court of
competent jurisdiction; (iii) to determine within sixty (60) days after the
filing of such petition whether to assume or to reject this Lease; (iv) to give
Landlord at least thirty (30) days' prior written notice, unless a shorter
notice period is agreed to in writing by the parties, of any proceeding relating
to any assumption or rejection of this Lease; and (v) to do all other things of
benefit to Landlord otherwise required under the Bankruptcy Code.
(b) If Tenant or a trustee elects to reject this Lease subsequent to the
filing of a petition under the Bankruptcy Code, or if this Lease is otherwise
rejected, Tenant shall immediately vacate and surrender possession of the
Premises in accordance with Article 21 hereof.
(c) If Tenant or a trustee elects to assume this Lease subsequent to the
filing of a petition under the Bankruptcy Code, Tenant, as debtor and as
debtor-in-possession, and any trustee who may be appointed agree as follows: (i)
to cure each and every existing breach by Tenant within not more than ninety
(90) days after assumption of this Lease; (ii) within ninety (90) days of this
Lease to compensate Landlord for any actual pecuniary loss resulting from any
existing breach, including, without limitation, Landlord's reasonable costs,
expenses and attorneys' fees incurred as a result of such breach, as determined
by a court of competent jurisdiction; (iii) in the event of an existing breach,
to provide adequate assurance of Tenant's future performance, including, without
limitation, (A) the deposit of a sum equal to three (3) months' installments of
Base Rent to be held to secure Tenant's obligations under the Lease, (B) the
production to Landlord of written documentation establishing that Tenant has
sufficient present and anticipated financial ability to perform each and every
obligation of Tenant under this
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Lease, and (C) such additional assurances, in form reasonably acceptable to
Landlord, as may be required under any applicable provision of the Bankruptcy
Code; (iv) the assumption will not breach any provision of this Lease; and (v)
the assumption will be subject to all of the provisions of this Lease unless the
prior written consent of Landlord is obtained.
(d) If Tenant assumes this Lease and proposes to assign the same 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 notices of such proposed assignment, setting forth (i) the name
and address of such person, (ii) all the terms and conditions of such offer, and
(iii) the adequate assurances to be provided Landlord to assure such person's
future performance under the Lease, 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 into such
assignment and assumption, and 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 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. The adequate assurance to be provided Landlord to
assure the assignee's future performance under the Lease shall include without
limitation: (A) the deposit of a sum equal to three (3) months' installments of
Base Rent to be held to secure Tenant's obligations under this Lease, (B) a
written demonstration that the assignee meets all reasonable financial and other
criteria of Landlord as did Tenant and its business at the time of execution of
this Lease, including the production of the most recent audited financial
statement of the assignee prepared by an independent certified public
accountant, (C) use of the Premises in compliance with the terms of Section 3.01
of this Lease, and (D) such additional assurances, in form reasonably acceptable
to Landlord, as to all matters identified in any applicable provision of the
Bankruptcy Code.
(e) Neither Tenant nor any trustee who may be appointed in the event of the
filing of a petition under the Bankruptcy Code shall conduct or permit the
conduct of any "fire," "bankruptcy," "going out of business" or auction sale in
or from the Premises.
14.02 Default. This Lease and the term and estate hereby granted are
subject to the limitation that:
(a) if Tenant shall default in the payment of (i) Base Rent and such
default shall continue for a period of five (5) days after Landlord shall
have given Tenant a notice specifying such default, or (ii) Additional
Charges on any date upon which the same becomes due and any such default
shall continue for ten (10) days after Landlord shall have given to Tenant
a notice specifying such default, or
(b) if any policy of insurance carried by or on behalf of Landlord with
respect to the Building shall be canceled or rendered void or voidable by
reason of the use of the Premises in violation of the restrictions provided
in Article 3 or the Rules and Regulations and if Tenant shall fail to cease
such use within twenty-four (24) hours after Landlord shall have given
Tenant a notice specifying such default, or
(c) if Tenant shall default in the keeping, observance or performance of
any covenant or agreement (other than a default of the character referred
to in Sections 14.02(a) and/or 14.02(b)), and if such default shall
continue and shall
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not be cured within thirty (30) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a default which for
causes beyond Tenant's reasonable control, cannot with due diligence be
cured within such period of thirty (30) days, if Tenant (i) shall not,
promptly upon the giving of such notice, advise Landlord of Tenant's
intention duly to institute all steps necessary to cure such default or
(ii) shall not duly institute and thereafter diligently prosecute to
completion all steps necessary to cure the same and, in any event, cure
such default within ninety (90) days of receipt of Landlord's notice of
such default by Tenant, or
(d) if any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted or the unexpired balance of the Term
would, by operation of law or otherwise, devolve upon or pass to any person
other than Tenant except as is expressly permitted under Article 12 or
Article 13, or
(e) if the Premises or any substantial portion thereof shall be abandoned
or become vacant for a period of twenty (20) consecutive Business Days, or
(f) if Tenant shall make an assignment for the benefit of creditors or
shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's
Property, or
(g) if, within ninety (90) days after the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's
Property, without the consent of Tenant, such appointment shall not have
been vacated or otherwise discharged, or if any execution or attachment
shall be issued against Tenant or any of Tenant's Property pursuant to
which the Premises shall be taken or occupied or attempted to be taken or
occupied,
then, in any of such cases, Landlord shall, in addition to any other remedies
available to it at law or in equity, be entitled to give to Tenant a notice of
intention to end the Term at the expiration of three (3) days from the date of
the giving of such notice, and, in the event such notice is given, this Lease
and the Term and estate hereby granted shall terminate upon the expiration of
such three (3) days with the same effect as if the last of such three (3) days
were the Expiration Date, but Tenant shall remain liable for damages as provided
herein or pursuant to law.
14.03 Re-entry by Landlord. If this Lease shall terminate as provided in
Section 14.02, Landlord or Landlord's Agents and servants may immediately or at
any time thereafter re-enter into or upon the Premises, or any part thereof in
the name of the whole, either by summary dispossess proceedings or by any
suitable action or proceeding at law, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold and enjoy the
Premises again as and of its first estate and interest therein. The words
"re-enter" and "re-entering" as used in this Lease are not restricted to their
technical legal meanings.
14.04 Damages. In the event of a termination of this Lease, Tenant shall
pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which, at the time of such termination, represents the then
present value (employing a discount rate equal to the then current rate of
United States Treasury Bills or Notes, as applicable, maturing on the
Expiration Date or the
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next maturity date for such bills or notes occurring after the Expiration
Date) of the excess, if any of (i) the aggregate of the Base Rent and
Additional Charges which would have been payable hereunder by Tenant, had
this Lease not terminated, for the period commencing with the day following
the date of such termination and ending with the Expiration Date over (ii)
the aggregate fair rental value of the Premises for the same period (for
the purposes of this subsection (a), the amount of Additional Charges which
would have been payable by Tenant under Article 5 shall, for each calendar
year ending after such termination, be deemed to be an amount equal to the
amount of Tenant's Expense Escalation and Tenant's Tax Payment payable by
Tenant for the calendar year and Tax Year, respectively, immediately
preceding the calendar year in which such termination shall occur), or
(b) sums equal to the aggregate Gross Rent which would have been payable by
Tenant had this Lease not terminated, payable upon the due dates therefor
specified herein until the Expiration Date; provided, however, that if
Landlord shall relet all or any part of the Premises for all or any part of
the period commencing on the day following the date of such termination and
ending on the Expiration Date, Landlord shall credit Tenant with the net
rents received by Landlord from such reletting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by Landlord in
terminating this Lease and re-entering the Premises and securing possession
thereof, as well as the expenses of reletting, including altering and
preparing the Premises for new tenants, brokers' commissions, and all other
expenses properly chargeable against the Premises and the rental therefrom
in connection with such reletting, it being understood that any such
reletting may be for a period equal to or shorter or longer than said
period and that Landlord shall have no obligation to so relet the Premises;
provided further that (i) in no event shall Tenant be entitled to receive
any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, (ii) in no event shall Tenant be entitled, in any suit for the
collection of damages pursuant to this subsection (b), to a credit in
respect of any net rents from a reletting except to the extent that such
net rents are actually received by Landlord, and (iii) if the Premises or
any part thereof should be relet in combination with other space, then
proper apportionment on a square foot rentable area basis shall be made of
the rent received from such reletting and of the expenses of reletting.
Suit or suits for the recovery of any damages payable hereunder by Tenant, or
any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall require Landlord to postpone suit
until the date when the Term would have expired but for such termination. In
addition to all remedies set forth in this Article 14 and anywhere else in this
Lease, if Tenant shall be in default under this Lease beyond any applicable cure
period, then Tenant shall be obligated to repay to Landlord the Base Rent for
which Tenant was excused from paying pursuant to Section 4.02 hereof
14.05 Right to Injunction. In the event of a breach or threatened breach on
the part of Tenant with respect to any of the covenants or agreements on the
part of or on behalf of Tenant to be kept, observed or performed, Landlord shall
also have the right to seek an injunction.
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14.06 Other Remedies. Nothing herein contained shall be construed as
limiting or preventing the recovery by Landlord against Tenant of any sums or
damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the part
of Tenant. The specified remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time, and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not herein provided.
14.07 Certain Waivers. Tenant waives and surrenders all right and privilege
which it might have under or by reason of any present or future law to redeem
the Premises or to have a continuance of this Lease for the Term after Tenant is
dispossessed or ejected therefrom by process of law.
14.08 No Waiver. Failure of Landlord to declare any default immediately
upon its occurrence or delay in taking any action in connection with such
default shall not waive such default but Landlord shall have the right to
declare any such default at any time thereafter. Any amounts paid by Tenant to
Landlord may be applied by Landlord, in its sole discretion, to any items then
owing by Tenant to Landlord under this Lease and receipt of a partial payment
shall not be deemed to be an accord and satisfaction or waiver of the failure to
make full payment.
14.09 Attorneys' Fees. In the event (i) Landlord places the enforcement of
this Lease, or any part thereof, or the collection of any rent due, or to become
due, hereunder, or recovery of the possession of the Premises in the hands of an
attorney, or files suit upon the same, or (ii) a court of competent jurisdiction
finds or declares that Tenant has defaulted in the performance of the terms of
this Lease, or is obligated to perform the terms of this Lease in the manner
directed by Landlord, Tenant shall reimburse Landlord within ten (10) days after
demand therefor for its reasonable attorneys' fees and disbursements and court
costs incurred in such proceedings.
14.10 Late Payments. (a) All sums paid by Landlord and all costs and
expenses incurred by Landlord, including attorneys' fees, in connection with the
performance of any act that is required to be performed by Tenant, together with
interest thereon at an annual rate (the "Lease Interest Rate") equal to six (6)
percentage points above the prime commercial lending rate of Citibank, N.A. (or
its successors or assigns) charged to its customers of highest credit standing
for ninety (90) day unsecured loans, in effect from time to time, from the date
of such payment or incurrence by Landlord of such cost and expense, shall
constitute additional rent payable by Tenant under this Lease and shall be paid
by Tenant to Landlord on demand.
(b) In the event Tenant shall fail to pay to Landlord Base Rent or and
Additional Charges on the first day the same shall be required to be paid to
Landlord hereunder (it being agreed that for purposes of this Article 14, the
first day that an amount is required to be paid to Landlord hereunder means the
first day that such amount is due notwithstanding that a grace period, with or
without notice, has been granted; for example, since Base Rent is due on the
first day of each month, even though a grace period until the fifth (5th) day of
each month has been agreed to prior to the occurrence of a default hereunder,
the first day that Base Rent is required to be paid to Landlord hereunder is the
first day of each month and said Base Rent is deemed to be due on the first day
of each month and overdue from and after the first day of each month if it is
not paid to Landlord by the end of the first day of each month), then:
(i) Tenant shall pay to Landlord interest on such overdue amount of
Base Rent and Additional Charges at the Lease Interest Rate from the sixth
(6th) day such
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overdue amount shall be due, to the date of payment thereof; and
(ii) In the event that Tenant shall fail to pay any portion of Gross
Rent by the date that is ten (10) days after the first day that such amount
shall become due and payable, then Tenant shall pay to Landlord an
administrative charge equal to six percent (6%) of the overdue amount in
the event Landlord is required to provide notices of default or take other
action pursuant to Section 14.02(a).
ARTICLE 15
QUIET ENJOYMENT
15.01 Quiet Enjoyment. Landlord covenants that, so long as Tenant is not in
default in the payment or performance of any of its obligations under this Lease
beyond any applicable grace period, Tenant shall and may peaceably and quietly
have, hold and enjoy the Premises. This covenant and any and all other covenants
of Landlord contained in this Lease shall be binding upon Landlord and its
successors and assigns only with respect to breaches which occur during its and
their respective ownership of Landlord's interest.
ARTICLE 16
RULES OF THE BUILDING
16.01 Building Rules. Tenant shall comply with, and Tenant shall cause its
licensees, employees, contractors, agents and invitees to comply with the rules
of the Building (the "Rules and Regulations") reasonably adopted and amended by
Landlord from time to time for the safety, care and cleanliness of the Premises
and the Building and for preservation of good order therein, all of which shall
be communicated by Landlord to Tenant and shall be thereafter carried out and
observed by Tenant, its agents, contractors, employees, invitees and licensees.
Landlord shall not enforce the rules of the Building in a manner which
discriminates against Tenant. The initial rules of the Building are set forth in
Exhibit B. If any rule of the Building shall conflict with any provision of this
Lease, such provision shall govern.
16.02 Graphics. No signs, numerals, letters or other graphics shall be used
or permitted on the exterior of, or which may be visible from outside, the
Premises, unless approved by Landlord in advance of installation.
ARTICLE 17
INSURANCE
17.01 Compliance with Insurance Standards. Tenant shall not occupy or use
the Premises, or permit any portion of the Premises to be occupied or used, for
any business or purpose which is unlawful, disreputable or deemed to be
hazardous on account of fire or other hazards, or permit anything to be done
which would in any way increase the risk of fire or other hazards, or permit
anything to be done which would in any way increase the rate of fire or
liability or any other insurance coverage on the Building or Building and/or its
contents. Landlord shall not be liable for the acts or omissions of other
tenants or parties which are in violation of the provisions of this Section.
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17.02 Landlord Insurance. (a) Landlord shall obtain and keep in full force
and effect insurance against loss or damage by fire and other casualty to the
Building including the Initial Alterations as may be insurable under then
available standard forms of "all-risk" insurance policies, in an amount at least
equal to the full replacement value thereof with such commercially reasonable
deductible(s) as may be determined by Landlord in its reasonable discretion.
Tenant shall notify Landlord of the completion of any such Alterations and of
the cost thereof, and shall maintain adequate records with respect to such
Alterations to facilitate the adjustment of any insurance claims with respect
thereto. Tenant shall cooperate with Landlord and Landlord's insurance companies
in the adjustment of any claims for any damage to the Building or such
Alterations.
(b) Landlord shall have the right to satisfy its obligations under
subsection (a) of this Section 17.02 by means of any so-called blanket policy or
policies of insurance covering the Building and other properties of Landlord or
its affiliates.
17.03 Tenant Insurance. (a) Tenant, at Tenant's sole cost and expense,
shall obtain and keep in full force and effect insurance against loss or damage
by fire and other casualty to Tenant's Property and to the Premises under then
available standard forms of "all-risk" insurance policies, in an amount equal to
one hundred percent (100%) of the replacement value thereof, with such
commercially reasonable deductible(s) as may be determined by Tenant in its
reasonable discretion.
(b) Tenant, at Tenant's sole cost and expense, shall obtain and maintain in
full force and effect throughout the Term a commercial general liability
insurance policy (ISO form or equivalent) insuring Tenant and naming Landlord
and, at Landlord's request, any Senior Interest Holder and any managing agent of
Landlord as additional insured(s), against any liability for bodily injury,
death or property damage occurring on or about the Premises, with limits of
liability of not less than $1,000,000 with respect to bodily injury and property
damage arising from any one occurrence and $2,000,000 from the aggregate of all
occurrences within each policy year. Such policy shall include a provision that
such aggregate limit shall apply separately at the Premises. In addition, Tenant
shall carry umbrella limits not less than $2,000,000 per occurrence for a total
liability limit of $3,000,000.
(c) Tenant shall not carry separate or additional insurance with respect to
the risks covered by the insurance required by this Article 17, concurrent in
form or contributing in the event of any loss or damage with any insurance
required to be obtained by Landlord under this Lease. Tenant may carry any
insurance coverage required of it hereunder pursuant to blanket policies of
insurance so long as the coverage afforded Landlord and the other named insureds
thereunder shall not be less than the coverage which would be provided by direct
policies.
17.04 Waiver of Subrogation. The parties hereto (a) shall use all
reasonable efforts to procure an appropriate clause in, or endorsement on, any
all-risk insurance covering the Premises, the Building and personal property,
fixtures and equipment located thereon or therein, pursuant to which the
insurance companies issuing same waive subrogation or consent to a waiver of
right of recovery, and (b) subject to obtaining such clause or endorsement of
waiver of subrogation or consent to a waiver of right of recovery, hereby agree
not to make any claim against or seek to recover from the other for any loss or
damage to its property or the property of others resulting from fire or other
hazards covered by such fire and extended coverage insurance; provided, however,
that the release, discharge, exoneration and covenant not to sue herein
contained shall be limited by and coextensive with the terms and provisions of
the waiver of
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subrogation clause or endorsement or clause or endorsement consenting to a
waiver of right of recovery. If either party shall be unable to obtain the
inclusion of such waiver of subrogation or consent to waiver clause even with
the payment of an additional premium, then such party shall attempt to name the
other party as an additional insured (but not a loss payee) under the policy.
Tenant acknowledges that Landlord shall not carry insurance on, and shall not be
responsible for damage to, Tenant's Property, that Landlord shall not be
responsible for damage to, any Alterations caused by Tenant, and that Landlord
shall not carry insurance against, or be responsible for any loss suffered by
Tenant due to, interruption of Tenant's business.
17.05 Policy Requirements. (a) The insurance required to be obtained by
Tenant under this Article: (i) shall be issued by an insurance company of
recognized reputability licensed to do business in the State of New York, which
is rated A-X or better by Best's Key Rating Guide, and (ii) shall be primary and
not be concurrent in form or contributing with any other coverage which Tenant
or Landlord may carry.
(b) Neither the issuance of any insurance policy required under this Lease,
nor the minimum limits specified herein with respect to Tenant's insurance
coverage, shall be deemed to limit or restrict in any way Tenant's liability
arising under this Lease. The dollar amounts set forth in this Article shall be
subject to review by Landlord from time to time during the term and may be
increased by Landlord acting reasonably in accordance with the requirements
imposed by landlords from time to time at first-class office Buildings.
(c) With respect to each insurance policy required to be obtained by Tenant
under this Article, on or before the Commencement Date, Tenant shall deliver to
Landlord satisfactory evidence that such insurance is in effect and satisfies
the requirements of this Article, together with evidence of payment of all
applicable premiums. By no later than thirty (30) days prior to the expiration
of any required policy Tenant shall provide to Landlord reasonably satisfactory
evidence of renewal or replacement of such insurance policy. Each insurance
policy required to be carried hereunder by or on behalf of Tenant shall provide
(and any certificate evidencing the existence of each such insurance policy
shall certify) that such insurance policy shall not be canceled or modified
unless Landlord shall have received ten (10) days' prior written notice of such
cancellation or modification. Landlord shall have the right to require Tenant to
obtain a certified summary of the coverage afforded by any required policy and
shall not be limited to accepting a certificate of insurance.
ARTICLE 18
NONLIABILITY AND INDEMNIFICATION
18.01 Exculpation. (a) Except for such liability as may be imposed by law
for gross negligence or willful misconduct of Landlord or Landlord's agents,
neither Landlord nor any Senior Interest Holder, nor any of their agents,
officers, directors, shareholders, partners or principals (disclosed or
undisclosed) shall be liable to Tenant or Tenant's agents, employees,
contractors, invitees or licensees or any other occupant of the Premises in
connection with any injury to Tenant or to any other person or for any damage
to, or loss (by theft or otherwise) of, any of Tenant's Property or of the
property of Tenant or any other person arising from or in connection with the
use by Tenant or such other person of the Premises or the Building, irrespective
of the cause of such injury, damage or loss, it being understood that no
property, other than such as might normally be brought upon or kept in the
Premises as incidental to the reasonable use of the Premises for the purposes
herein permitted will be brought upon or be kept in the Premises. Any employee
to whom any property shall be entrusted by or on behalf of Tenant shall be
deemed to be acting as Tenant's agent with respect to such property and neither
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Landlord nor any Senior Interest Holder nor their respective agents shall be
liable for any loss of or damage to any such property by theft or otherwise.
(b) Except for such liability as may be imposed by law for the negligence
or willful acts of Landlord or Landlord's Agents or for the breach by Landlord
of any term of this Lease to be performed by Landlord, no (i) performance by
Landlord, Tenant or others of any repairs or Alterations in or to the Building
or Premises, (ii) failure of Landlord or others to make any such repairs or
Alterations, (iii) damage to the Building Systems or equipment, Premises or the
property of Tenant, (iv) injury to any persons caused by other tenants or
persons in the Building or by operations in the construction of any private,
public or quasi-public work, or by any other cause, (v) latent defect in the
Building, Building Systems or equipment or Premises, (vi) diminution or shutting
off of light, air or view by any structure which may be erected on lands in the
vicinity of the Building or (vii) inconvenience or annoyance to Tenant or injury
to or interruption of Tenant's business by reason of anything referred to in the
foregoing subsections (i) through (vi), shall impose any liability on Landlord
to Tenant. No representation, guaranty or warranty is made that the
communications or security systems, devices or procedures of the Building or
Building will be effective to prevent injury to Tenant or any other person or
damage to, or loss (by theft or otherwise) of, any of the property of Tenant or
the property of any other person, and Landlord reserves the right to discontinue
or modify at any time such communications or security systems or procedures
without liability to Tenant.
18.02 Indemnity. To the fullest extent permitted by applicable law, Tenant
hereby agrees to indemnify and hold harmless Landlord, each Senior Interest
Holder and any managing agent of Landlord, and their respective agents,
officers, directors, shareholders, partners and principals, from and against any
and all claims, losses, actions, damages, liabilities and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) that arise out
of or in connection with (a) the possession, use, occupancy, management, repair,
maintenance or control of the Premises, or any portion thereof, or the business
conducted by Tenant in the Premises, or (b) any Alteration to any portion of the
Premises or the Building made by or for Tenant or any occupants of the Premises,
or (c) any willful or negligent act or omission of Tenant or anyone for whom
Tenant is responsible, or (d) any default, breach, violation or nonperformance
of this Lease by Tenant or any subtenant of Tenant or any officer, employee,
agent or contractor of Tenant or any subtenant of Tenant, or (e) any
Environmental Activity by Tenant or anyone for whom Tenant is responsible at the
Building, or (f) any injury or death to individuals or damage to property
sustained on or about the Premises; provided, however, that nothing contained in
this Section shall obligate Tenant to indemnify Landlord from any claim, loss,
damage, liability or expense resulting solely from the gross negligence or
willful misconduct of Landlord or Landlord's Agents. Tenant shall, at its own
cost and expense, upon notice thereof from Landlord defend any and all actions,
suits and proceedings which may be brought against any one or more of the
aforesaid parties with respect to the foregoing or in which any one or more of
the aforesaid parties may be impleaded. Tenant shall pay, satisfy and discharge
any and all final money judgments which may be recovered against Landlord in
connection with the foregoing. The general liability insurance policy required
by Section 17.03(b) hereof shall also cover Tenant for liability assumed by
contract, specifically including clause (I) of this Section 18.02. The
obligations of Tenant under this Section 18.02 shall survive the expiration or
sooner termination of this Lease.
18.03 Limitation of Landlord's Personal Liability. Tenant shall look solely
to Landlord's interest in the Building for the recovery of any judgment against
Landlord, and if Landlord is a partnership, its partners, whether general or
limited, or if Landlord is a corporation, its directors, officers or
shareholders, shall not be personally liable for any such
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judgment. The foregoing sentence is not intended to, and shall not, limit any
right that Tenant might otherwise have to obtain injunctive relief against
Landlord or Landlord's successors or assigns or to maintain any suit or action
in connection with enforcement or collection of amounts which may become owing
or payable under or on account of insurance maintained by Landlord. Any lien
obtained to enforce any such judgment and any levy of execution on such judgment
shall be subject and subordinate to any Superior Mortgage.
ARTICLE 19
CONDEMNATION
19.01 Condemnation. (a) If there shall be a total taking of the Premises or
a Constructive Total Taking (as defined in this Section 19.01) of the Building
in condemnation proceedings or by any right of eminent domain or by conveyance
in lieu thereof, this Lease and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of taking of possession by the
condemning authority. In the event of a taking which is less than a Constructive
Total Taking, (i) the term and estate hereby granted with respect to the taken
part of the Premises shall forthwith cease and terminate as of the date of
taking of possession by the condemning authority and the Base Rent, Tenant's
Expense Escalation, Tenant's Tax Share, Base Real Estate Taxes and
Multiplication Factor shall be appropriately abated or reduced, as the case may
be, with respect to such portion of the Premises for the period from such date
to the date specified in this Lease for the expiration of the Term and (ii) the
Base Rent shall be appropriately abated for any portion of the Premises rendered
untenantable by such taking until such portion of the Premises is made
tenantable. "Constructive Total Taking" means a taking of such scope that (A)
the untaken part of the Building (whether or not the Premises are affected by
the taking) would in Landlord's reasonable judgment be uneconomic to operate and
(B) leases (including this Lease) of tenants occupying at least twenty percent
(20%) of the rentable area of the Building are terminated in connection with
such taking. Landlord shall give Tenant notice of a total taking or a
Constructive Total Taking within fifteen (15) days of receiving notice thereof
(b) In the event of any condemnation or taking of all or a part of the
Building, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, Tenant shall be entitled to receive no part of
such award and Tenant hereby assigns to Landlord any and all right, title and
interest of Tenant now or hereafter arising in or to any such award or any part
thereof; provided, however, that nothing shall preclude Tenant from intervening
in any such condemnation proceeding to claim or receive from the condemning
authority any compensation to which Tenant may otherwise lawfully be entitled in
such case for the expenses of moving to a new location, reimbursement for the
loss of Tenant's Property or for any other benefits available to a tenant in
such circumstances; provided further that the same (i) does not include any
value of the estate vested by this Lease in Tenant and (ii) shall not reduce the
award of Landlord in any respect.
(c) Notwithstanding the foregoing, if all or any portion of the Premises
shall be condemned or taken for governmental occupancy for a limited period,
this Lease shall continue in full force and effect (without any abatement of the
Gross Rent) and Tenant shall be entitled to receive the entire award therefor
(whether paid as damages, rent or otherwise) unless the period of governmental
occupancy extends beyond the Expiration Date, in which case Landlord shall be
entitled to such part of such award as shall be properly allocable to the cost
of restoration of the Premises, and the balance of such award shall be
apportioned between Landlord and Tenant as of the Expiration Date. If the
termination of such governmental occupancy occurs prior to expiration of this
Lease, Tenant shall, to the extent that an award has been made for such
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purpose, after application for and diligent pursuit of such award by Tenant,
restore the Premises as nearly as possible to their condition prior to the
condemnation or taking.
ARTICLE 20
CASUALTY
20.01 Casualty. If (a) the Premises or any part thereof shall be damaged or
rendered untenantable by fire or other insured casualty, (b) Tenant gives notice
of such damage or destruction to Landlord and (c) this Lease is not to be
terminated pursuant to this Article 20, Landlord shall proceed with the repair
of such damage (but Landlord shall have no obligation to repair any damage to
any Alterations or Tenant's Property) with reasonable diligence after the
collection of the insurance proceeds attributable to such damage, but only to
the extent of available insurance proceeds. In the event Landlord fails to
repair such damage within twelve (12) months of the casualty, Tenant may provide
Landlord with a thirty (30) day notice of intent to terminate. If Landlord fails
to complete the repairs (with the exception of punch list items) by the end of
the thirty (30) day period, this Lease shall end and terminate on such date.
Except as provided in Section 20.06, the rent shall be equitably abated to the
extent that all or any part of the Premises shall have been rendered
untenantable, from the date of the damage to the date that Landlord shall have
completed the repairs required of Landlord pursuant to the previous sentence;
provided, however, that if Tenant reoccupies a portion of the Premises during
the period of repair, the rent allocable to such reoccupied portion, based upon
the proportion which the reoccupied portion of the Premises bears to the total
area of the Premises, shall be payable by Tenant from the date of such
occupancy.
20.02 Termination Rights. If the Premises shall be totally damaged or
rendered wholly Untenantable by fire or other casualty or if the Building shall
be so damaged by fire or other casualty that substantial alteration or
reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such fire or other
casualty) or the insurance proceeds available to Landlord, in Landlord's sole
opinion, shall not be reasonably sufficient to repair the damage, and Landlord
elects not to restore the Building, then in any such event Landlord may, at its
option, terminate this Lease by giving Tenant thirty (30) days' notice of such
termination at any time within one hundred twenty (120) days after the date of
such fire or other casualty. If such notice of termination shall be given, this
Lease shall terminate as of the date provided in such notice (whether or not the
Term shall have commenced) with the same effect as if that date were the
Expiration Date. If, at any time prior to the giving of the notice of
termination or the commencement of repairs pursuant to Section 20.01, there
shall be a Successor Landlord (as hereinafter defined), such Successor Landlord
shall have a further period of sixty (60) days from the date of its taking
possession or from the expiration of the one hundred twenty (120) day period
established above, whichever is earlier, to terminate this Lease by thirty (30)
days' notice to Tenant, in which event this Lease shall terminate as of the date
provided in such notice (whether or not the Term shall have commenced) with the
same effect as if that date were the Expiration Date.
20.03 Disclaimer. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant occasioned by damage by
fire or other casualty or the repair thereof Landlord will not carry insurance
of any kind on Tenant's Property or the Improvements made by or on behalf of
Tenant in the Premises, and, notwithstanding anything to the contrary in this
Article 20, Landlord shall not be obligated to repair any damage to Tenant's
Property or to said Improvements or to replace the same.
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20.04 RPL ss. 227. This Article shall be considered an express agreement
governing any case of damage to or destruction of the Building and the Premises
by fire or other casualty, and any law providing for such a contingency in the
absence of such an express agreement, including, without limitation, New York
Real Property Law ss. 227, shall have no application in such case.
20.05 Cooperation. Notwithstanding any of the foregoing provisions of this
Article 20, if, by reason of some action or inaction on the part of Tenant or
any of Tenant's invitees, either (a) Landlord or the Senior Interest Holders
shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the Premises or the
Building by fire or other casualty or (b) the Premises or the Building shall be
damaged or destroyed or rendered completely or partially untenantable on account
of fire or other casualty then, without prejudice to any other remedy which may
be available against Tenant, the abatement of rent provided for in this Article
shall not be effective (i) in the case of subsection (a) above, to the extent of
the uncollected insurance proceeds, and (ii) in the case of subsection (b)
above, to the extent of the excess of the cost of repair over the amount of the
collected insurance proceeds.
20.06 Arbitration. If a dispute shall arise with respect to any of the
matters set forth in this Article 20 and if the parties shall not resolve such
dispute within thirty (30) days after either party gives notice to the other of
the existence of such dispute, either party may submit the dispute to
arbitration pursuant to Article 23.
ARTICLE 21
SURRENDER
21.01 Surrender. (a) On the Expiration Date or upon the sooner termination
of this Lease or upon any re-entry by Landlord, Tenant shall, at its expense,
quit, surrender, vacate and deliver the Premises to Landlord "broom clean" and
in good order, condition and repair, ordinary wear, tear and damage by fire or
other insured casualty excepted. Tenant shall, at its expense, except to the
extent Landlord shall notify Tenant in writing not later than thirty (30) days
prior to the Expiration Date, remove from the Building all of Tenant's Property
and restore the Premises to their condition existing as of the date hereof Any
Tenant's Property or other personal property which shall remain in the Premises
(A) after the Expiration Date or (B) for thirty (30) days after the termination
of this Lease shall be deemed to have been abandoned and either may be retained
by Landlord as its property or may be disposed of as Landlord may see fit. If
such property not so removed shall be sold, Landlord may receive and retain the
proceeds of such sale and apply the same, at its option, against the expenses of
the sale, moving and storage, arrears of rent and any damages to which Landlord
may be entitled. Any excess proceeds shall be the property of Landlord. Any
expense incurred by Landlord in removing or disposing of any item that Tenant is
required to remove and/or dispose of pursuant to this Section 21.01, shall be
reimbursed to Landlord by Tenant as Additional Charges on demand. The
obligations of Tenant under this Section 21.01(a) shall survive the expiration
or sooner termination of the Lease.
(1,) Tenant expressly waives, for itself and for any person claiming
through or under Tenant, any rights which Tenant or such person may have under
the provisions of Section 2201 of the New York Civil Practice Law and Rules and
any similar successor law of same import then in force in connection with any
holdover proceedings which Landlord may institute to enforce the provisions of
this Article.
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21.02 Holding-Over. (a) In the event of any holding-over by Tenant after
expiration or termination of this Lease without the consent of Landlord, Tenant
shall:
(i) pay as holdover rental for each month of the holdover tenancy an
amount equal to the greater of (1) the fair market rental value of the
Premises for such month (as reasonably determined by Landlord) or (2) two
hundred percent (200%) of the Gross Rent which Tenant was obligated to pay
for the month immediately preceding the end of the Term; and
(ii) be liable to Landlord for (1) any payment or rent concession
which Landlord may be required to make to any tenant obtained by Landlord
for all or any part of the Premises (a "New Tenant") in order to induce
such New Tenant not to terminate its lease by reason of the holding-over by
Tenant (including, without being limited to, any holdover expenses, rent or
damages that a New Tenant shall be responsible for) and (2) the loss of the
benefit of the bargain if any New Tenant shall terminate its lease by
reason of the holding-over by Tenant.
No holding-over by Tenant after the Term shall operate to extend the Term. In
the event of any unauthorized holding-over, Tenant shall indemnify and hold
harmless Landlord against all claims for damages by any other tenant to whom
Landlord may have leased all or any part of the Premises effective upon the
termination of this Lease. Anything in this Article to the contrary
notwithstanding, the acceptance of any rent paid by Tenant pursuant to this
Section 21.02 shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding, and the preceding sentence shall be
deemed to be an "agreement expressly providing otherwise" within the meaning of
Section 232-c of the Real Property Law of the State of New York and any
successor law of like import.
(1,) In order to ensure Tenant's prompt surrender of the Premises thirty
(30) days after the Early Expiration Date, Tenant acknowledges that on or about
the Early Expiration Date, Landlord shall commence a summary holdover proceeding
(the "Holdover Proceeding") and file a notice of petition and petition in the
form of Exhibit C. In the event Landlord institutes the Holdover Proceeding, it
shall submit the Stipulation of Settlement, Exhibit D hereto and agrees to
withhold the execution of the warrant of eviction for a period of thirty (30)
days after the Early Expiration Date.
ARTICLE 22
ESTOPPEL CERTIFICATES
22.01 Estoppel Certificates. Tenant agrees at any time and from time to
time upon ten (10) days' prior notice from the Landlord to execute, acknowledge
and deliver to the Landlord and to such other persons and entities as Landlord
may reasonably designate, a statement 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 date to which the Base Rent has been paid and the current
amount of Base Rent, (c) whether all Additional Charges that is due and payable
on or before such date has been paid in full, (d) that, to the best of the
certifying party's knowledge, the Landlord is not in default in observing,
performing or complying with any term, covenant or condition contained in this
Lease on such party's part to be observed, performed or complied with or, if the
certifying party has knowledge of any such default, specifying each such
default, (e) that, to the best of the certifying party's knowledge, the
certifying party has not made and does not have any claim
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against the Landlord under this Lease or, if so, the nature and the dollar
amount, if any, of such claim, (f) that, to the best of the certifying party's
knowledge, there do not exist any offsets, defenses or counterclaims against
enforcement of any of the terms, covenants or conditions of this Lease to be
observed, performed or complied with on the part of the Landlord, or, if such do
exist, specifying the same and the dollar amount thereof, and (g) such further
information with respect to this Lease or the Premises as Landlord may
reasonably request, it being intended that any such statement delivered pursuant
to this Section 22.01 shall be binding on the certifying party and may be relied
upon by the requesting party and any designee of the requesting party,
including, without limitation, any prospective purchaser of the Premises, any
mortgagee or prospective mortgagee of the Premises, or any lessor or prospective
lessor under any underlying lease of the Premises or any assignee or prospective
assignee of any such mortgagee or lessor.
ARTICLE 23
SECURITY
23.01 Security. (a) During the Term of this Lease, Tenant shall maintain on
deposit with Landlord, or at Tenant's option, deliver a "clean," unconditional,
irrevocable and transferable letter of credit in the amount of the Security (as
hereinafter defined) (the "Letter or Credit") satisfactory to Landlord, issued
by and drawn on a New York bank, for the account of Landlord, for a term of not
less than one (1) year, as security for the faithful performance and observance
by Tenant of the terms, covenants, conditions and provisions of this Lease,
including, without limitation, the surrender of possession of the Premises to
Landlord as herein provided, in the amount of Fifty Thousand and 00/100 Dollars
($50,000.00) (the "Security").
ARTICLE 24
INTENTIONALLY DELETED
ARTICLE 25
INTENTIONALLY DELETED
ARTICLE 26
MISCELLANEOUS
26.01 Successors and Assigns. The terms of this Lease shall bind and
benefit the successors and assigns of the parties with the same effect as if
mentioned in each instance where a party is named or referred to, except that no
violation of the provisions of Article 12 shall operate to vest any right in any
successor or assignee of Tenant and that the provisions of this Article shall
not be construed as modifying the conditions of limitation contained in Article
13 or Article 14.
26.02 Present Landlord. The term "Landlord" shall mean only the owner at
the time in question of the present landlord's interest in the Building and, in
the event of a sale or transfer of the Building (by operation of law or
otherwise), or in the event of the making of a lease for all or substantially
all of the Building, or in the event of a sale or transfer (by operation of law
or otherwise) of the leasehold estate under any such lease, the grantor,
transferor or lessor, as the case may be, shall be and hereby is (to the extent
of the interest or portion of the Building or leasehold estate sold, transferred
or leased) automatically and entirely released and discharged, from and after
the date of such sale, transfer or leasing, of all liability in respect of the
performance of any of the terms of this Lease on the part of Landlord thereafter
to be performed; provided that the purchaser, transferee or lessee
(collectively, "Transferee") shall
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have assumed and agreed to perform, subject to the limitations of this Article
and, in the case of a Successor Landlord, the provisions of Section 13.02 and
only during and in respect of the Transferee's period of ownership of Landlord's
interest under this Lease, all of the terms of this Lease on the part of
Landlord to be performed during such period of ownership. The terms of this
Lease shall be deemed to be "covenants running with the land", it being intended
that Landlord's obligations hereunder shall, as limited by this Article, be
binding on Landlord, its successors and assigns, only during and in respect of
their respective successive periods of ownership.
26.03 No Offer. The submission of this Lease to Tenant shall not constitute
an offer and shall not bind the parties hereto in any manner whatsoever until
(a) Tenant has duly executed and delivered duplicate counterparts to Landlord,
and (b) Landlord has executed and delivered one fully executed counterpart to
Tenant.
26.04 Inability to Perform. (a) This Lease and the obligations of Tenant to
pay Gross Rent and perform all of the other terms of this Lease on the part of
Tenant to be performed shall in no way be affected because Landlord is unable or
delayed in fulfilling any of its obligations under this Lease by reason of Force
Majeure. Landlord shall in each instance exercise reasonable diligence to effect
performance when and as soon as possible; provided, however, that Landlord shall
be under no obligation to employ overtime or premium labor.
(b) For purposes of this Lease, "Force Majeure" shall mean any and all
causes beyond the reasonable control of Landlord or Tenant, as the case may be,
including delays caused by the other party hereto or other tenants, Legal
Requirements and other forms of governmental restrictions, regulations or
controls (including energy and water conservation measures), labor disputes,
accidents, mechanical breakdowns, shortages or inability to obtain labor, fuel,
water, electricity or materials through ordinary sources, acts of God, war,
sabotage, embargo, enemy action, civil commotion, fire or other casualty, but
shall not include lack of funds or financial inability to perform.
26.05 Waiver of Counterclaims and Jury Trial. In the event Landlord
commences any summary proceeding or action for non-payment of rent, Tenant
covenants and agrees not to interpose, by consolidation of actions or otherwise,
any counterclaim in any such proceeding (provided that the claim to be asserted
in any such counterclaim would not be waived by Tenant's failure to raise such
claim), it being agreed that nothing contained herein shall be deemed to prevent
Tenant from bringing a separate proceeding with respect to such counterclaim or
be deemed a waiver thereof. To the extent permitted by applicable law, Landlord
and Tenant hereby waive trial by jury in any matter arising out of or in any way
connected with this Lease. The provisions of this Section 26.05 shall survive
the termination of this Lease.
26.06 Notices. Any bills, statements, notices, demands, requests, consents
or other communications given or required to be given under or in connection
with this Lease or pursuant to any Legal Requirement shall be effective only if
in writing
(a) if to the parties, then sent by registered or certified mail,
return receipt requested, postage prepaid, or by hand delivery or reputable
overnight courier such as Federal Express and addressed to parties at the
addresses set forth at the head of this Lease, or to such other addresses
as the parties may designate for such purpose by like notice; and
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(b) if to any other person, sent by registered or certified mail,
return receipt requested and postage prepaid, addressed to such person's
last known principal address or to such other address as such person may
designate to Landlord and Tenant as its address for such purpose by like
notice.
Any such bill, statement, notice, demand, request, consent or other
communication shall be deemed to have been rendered or given (A) on the date
delivered, if delivered by hand, or (B) on the earlier of (x) the date actually
received or (y) the second (2nd) Business Day after mailing if sent by certified
or registered mail or (z) the following Business Day after deposit with
overnight courier.
26.07 Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstances, shall to 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 affected, and each provision of this
Lease shall be valid and shall be enforceable to the extent permitted by law.
26.08 Amendments. This Lease may not be altered, changed or amended except
by an instrument in writing signed by the party to be charged.
26.09 No Joint Venture. This Lease shall not be deemed or construed to
create or establish any relationship of partnership or joint venture or similar
relationship or arrangement between Landlord and Tenant.
26.10 Brokers. Each party represents to the other that it has dealt with no
broker in connection with this Lease other than the Broker (as defined in
Section 1.01). Each shall indemnify and hold harmless the other from and against
all loss, cost, liability and expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of any claim for a commission or
other compensation by any broker (other than the Broker) who has dealt with
Tenant in connection with this Lease (Landlord not to make any settlement with
any such broker without Tenant's consent). Landlord shall indemnify and hold
harmless Tenant from and against all loss, liability and expense (including,
without limitation, reasonable attorneys' fees and disbursements) arising out of
any claim for a commission or other compensation by the Broker or any other
broker who has dealt with Landlord in connection with this Lease (Tenant may not
make any settlement with any such broker without Landlord's consent). Landlord
shall pay the Brokers a commission (the "Commission") in accordance with a
separate agreement. The obligations of Landlord and Tenant under this Section
26.10 shall survive the expiration or sooner termination of this Lease.
26.11 Merger. This Lease embodies the entire understanding between the
parties with respect to the subject matter hereof, and all prior agreements,
understandings and statements, oral or written, with respect thereto are merged
in this Lease.
26.12 Applicable Law. This Lease shall be construed and enforced according
to the laws of the State of New York.
26.13 Shoring; No Dedication. (a) If an excavation or other substructure
work shall be undertaken or authorized upon land adjacent to the Building or in
the vaults beneath the Building or in subsurface space adjacent to said vaults,
Tenant shall afford Landlord or the person causing such excavation or other
substructure work license to enter upon the Premises for the purpose of doing
such work as Landlord or such person shall reasonably deem necessary to
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protect any of the walls or structures of the Building or surrounding land from
injury or damage and to support the same by proper foundations, pinning and/or
underpinning, and, except in case of emergency, Landlord shall endeavor to have
such entry accomplished during reasonable hours in the presence of a
representative of Tenant, who shall be designated by Tenant promptly upon
Landlord's request. Such license to enter shall be without liability of Landlord
to Tenant.
(b) Landlord shall have the right to erect any gate, chain or other
obstruction or to close off any portion of the Common Areas to the public at any
time to the extent necessary to prevent a dedication thereof for public use.
Landlord shall use reasonable efforts to minimize any resulting interference
with access to the Premises.
26.14 Notice of Occurrences. Tenant shall give notice to Landlord, promptly
after Tenant learns thereof, of any accident, emergency, occurrence for which
Landlord might be liable, fire or other casualty and all damages to or defects
in the Premises or the Building for the repair of which Landlord might be
responsible or which constitutes Landlord's property. Such notice shall be given
by telegram, facsimile or personal delivery to the address of Landlord then in
effect for notices.
26.15 Vaults. No vaults, vault space or other space not within the property
line of the Building shall be leased hereunder notwithstanding anything
contained in or indicated on any sketch, blueprint or plan, or elsewhere in this
Lease to the contrary. Landlord makes no representation as the location of the
property line of the Building. All vaults and vault space and all other space
not within the property line of the Building, which Tenant may be permitted to
use or occupy, are to be used or occupied under a license revocable by Landlord
on ten (10) days' notice to Tenant, and should any such license be revoked by
Landlord, or should the amount of any such vaults, vault space or other space be
diminished or required by any federal, state or municipal authority or public
utility, Landlord shall be without liability to Tenant. Any fee, tax or charge
imposed by any governmental authority for any such vault, vault space or other
space shall be paid by Tenant.
26.16 Window Cleaning. Tenant shall not authorize the cleaning of any
window in the Premises from the outside (within the meaning of Section 202 of
the New York Labor Law or any successor statute). Landlord shall provide
exterior window cleaning two (2) times per annum.
26.17 Windows. If at any time any windows of the Premises are temporarily
closed, darkened or bricked-up by reason of repairs, maintenance, alterations or
improvements to the Building, or any of such windows are permanently closed,
darkened or bricked-up due to any Legal Requirement, Landlord shall not be
liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement of Base Rent or Additional
Charges nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction.
26.18 Consents and Approvals. (a) Wherever it is specifically provided in
this Lease that a party's consent or approval shall not be unreasonably
withheld, a response to a request for such consent or approval shall also not be
unreasonably delayed. If either Landlord or Tenant considers that the other has
unreasonably withheld or delayed a consent or approval, it shall so notify the
other party within ten (10) days after receipt of notice of denial of the
requested consent or approval or, in case notice of denial is not received,
within fifteen (15) days after making its request for the consent or approval.
"Consent" shall mean the prior written approval or consent of the applicable
party.
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(b) Tenant hereby waives any claim against Landlord which it may have based
upon any assertion that Landlord has unreasonably withheld or unreasonably
delayed any consent or approval that, pursuant to the terms of this Lease, is
not to be unreasonably withheld and Tenant agrees that its sole remedy shall be
an action or proceeding to enforce any such provision or for specific
performance, injunction or declaratory judgment that the requested consent or
approval shall be deemed to have been granted.
26.19 Development Rights. (a) Tenant acknowledges that it has no rights to
any development rights, "air rights" or comparable rights appurtenant to the
Building, and consents, without further consideration, to any utilization of
such rights by Landlord and agrees to promptly execute and deliver any
instruments which may be requested by Landlord, including instruments merging
zoning lots, evidencing such acknowledgment and consent. The provisions of this
Section shall be deemed to be and shall be construed as an express waiver by
Tenant of any interest Tenant may have as a "party in interest" (as such quoted
term is defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City
of New York) in the Building.
(b) Landlord shall have the right, at any time, to convert the Building to
condominium ownership and, upon such conversion, (i) this Lease and the estate
granted hereby shall be subject and subordinate to the applicable condominium
declaration and related documents and (ii) the owner of the unit or units of
which the Premises form a part shall be deemed to be the Landlord hereunder.
26.20 Business Hours. As used in this Lease, "Business Days" means any days
which are not Saturdays, Sundays or holidays designated by Local 32B-32J (or its
Successor) ("Holidays") and "Business Hours" means the hours between 8:00 A.M.
and 6:00 P.M. on Business Days.
26.21 Confidentiality. Tenant shall use reasonable efforts to keep the
provisions of this Lease confidential, and shall instruct its agents, employees,
attorneys and consultants to keep such provisions confidential.
26.22 Exhibits. The terms and provisions of Exhibits "A" through "E",
inclusive, attached to this Lease are made a part of this Lease for all
purposes.
26.23 No Recording of Lease. Neither this Lease nor any memorandum in
respect of this Lease shall be recorded.
26.24 Time is of the Essence. TIME IS OF THE ESSENCE with respect to this
Lease and to each and all of its provisions.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD:
- ---------
680 FIFTH AVENUE ASSOCIATES, L.P.
By: HENSEL FIFTH AVENUE ASSOCIATES, L.P.,
its General Partner
By: HENSEL 680 REALTY CORP., WITNESS:
its General Partner
By: /s/ Theodore Haft /s/ [illegible]
------------------------------ ------------------------------
Theodore Haft
President
TENANT:
- -------
CYGNE DESIGN, INC. WITNESS:
By:
/s/ Bernard Manuel /s/ Robert [illegible]
----------------------------- ------------------------------
Name: Bernard Manuel
Title: CEO
34
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Exhibit "A"
Description of Land
ALL that plot, piece or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the southerly side of 54th
Street with the westerly side of 5th Avenue;
RUNNING THENCE Southerly along the westerly side of 5th Avenue,
100 feet 5 inches to the center line of block between 53rd and 54th
Streets;
THENCE Westerly along said center line of block 122 feet 6 inches;
THENCE Northerly parallel with 6th Avenue 100 feet 5 inches to the southerly
side of 54th Street;
THENCE Easterly along the southerly side of 54th Street 122 feet 6 inches to the
point or place of BEGINNING.
<PAGE>
Exhibit B
Floor Plan
[attached hereto]
<PAGE>
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
<PAGE>
Exhibit "C"
Building Rules and Regulations
1. The sidewalks, driveways, entrances, passages, courts, lobbies,
esplanade areas, elevators, stairways, vestibules, corridors, halls and other
public portions of the Building ("Public Areas") shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from a
tenant's premises, and no tenant shall permit any of its agents, employees,
contractors, licensees or invitees (collectively, "Invitees") to congregate or
loiter in any of the Public Areas or any other part of the Building used in
common by other tenants of the Building. No tenant shall invite to, or permit to
visit, its premises persons in such numbers or under such conditions as may
interfere with the use and enjoyment by others of the Public Areas. Fire exits
and stairways are for emergency use only, and shall not be used for any other
purposes by any tenant, or the Invitees of any tenant. Landlord reserves the
right to control and operate, and to restrict and regulate the use of, the
Public Areas and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it reasonably deems best for the
benefit of the tenants generally, including the right to allocate certain
elevators for delivery service, and the right to designate which Building
entrances shall be used by persons making deliveries in the Building. No doormat
of any kind whatsoever shall be placed or left in any public hall or outside any
entry door of a tenant's premises.
2. No awnings or other projections shall be attached to the outside walls
(or inside atrium walls) or windows of the Building. No curtains, blinds, shades
or screens shall be attached or hung in, or used in connection with, any window
or door of a tenant's premises, without the consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner, reasonably approved by Landlord. No tenant shall have
the right to remove or change curtains, shades, blinds or other window coverings
within its premises without Landlord's consent. In order that the Building can
and will maintain a uniform appearance to those persons outside of the Building,
each tenant occupying the perimeter areas of the Building shall (a) use only
building standard lighting in areas where lighting is visible from the outside
of the Building and (b) use only building standard blinds in window areas which
are visible from the outside of the Building.
3. No sign, insignia, advertisement, lettering, notice or other object
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside of its premises or the Building or on corridor walls without the
prior consent of Landlord. Signs on each entrance door of a tenant's premises
shall conform to building standard signs. Such signs shall, at the expense of
the applicable tenant, be inscribed, painted or affixed by sign makers approved
by Landlord acting reasonably. In the event of the violation of the foregoing by
any tenant, Landlord may remove the same without any liability, and may charge
the expense incurred in such removal to the tenant or tenants violating this
Rule. Interior signs, elevator cab designations, if any, and lettering on doors
and the Building directory shall, if and when approved by Landlord, be
inscribed, painted or affixed for each tenant by Landlord, at the
<PAGE>
expense of such tenant, and shall be of a size, color and style reasonably
acceptable to Landlord.
4. Neither the sashes, sash doors, skylights or windows that reflect or
admit light and air into the Public Areas in the Building nor the HVAC vents and
doors shall be covered or obstructed by any tenant, nor shall any bottles,
parcels or other articles be placed on the window sills or on the peripheral
heating enclosures. Whenever the HVAC systems are in operation, such tenant
shall cause the shades, blinds or other window coverings to be drawn, as
reasonably required because of the position of the sun.
5. No showcases or other articles or property shall be put by any tenant in
front of or affixed to any part of the exterior of the Building, nor placed in
the Public Areas.
6. No acids, vapors or other harmful materials shall be discharged, or
permitted to be discharged, into the waste lines, vents or flues of the
Building. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other foreign substances
shall be thrown or deposited therein. Nothing shall be swept or thrown into the
Public Areas or other areas of the Building, or into or upon any HVAC vents or
registers or plumbing apparatus in the Building, or upon adjoining buildings or
land or the street. The cost of repairing any damage resulting from any misuse
of such fixtures, vents, registers and apparatus and the cost of repairing any
damage to the Building, or to any facilities of the Building, or to any
adjoining building or property, caused by any tenant, or the Invitees of such
tenant, shall be paid by such tenant. Any cuspidors or similar containers or
receptacles shall be emptied, cared for and cleaned by and at the expense of the
tenant.
7. Except for the making of customary office decorations in its premises in
accordance with its lease, no tenant shall mark, paint, drill into or in any way
deface any part of its premises or the Building. No boring, cutting or stringing
of wires shall be permitted, except with the prior written consent of, and as
directed by, Landlord. No telephone, telegraph or other wires or instruments
shall be introduced into the Building by any tenant except in a manner
reasonably approved by Landlord. No tenant shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor of
its premises, and, if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first affixed to the
floor, by a paste or other material, soluble in water, the use of cement or
other similar adhesive material being expressly prohibited.
8. No bicycles, vehicles, animals (except seeing eye dogs), fish or birds
of any kind shall be brought into, or kept in or about, a tenant's premises.
9. No noise, including, but not limited to, music, the playing of musical
instruments, recordings, radio or television, which, in the reasonable judgment
of Landlord, might disturb other tenants, shall be made or permitted by any
tenant. Nothing shall be done or permitted by any tenant which would
unreasonably or materially adversely impair or interfere with the use or
enjoyment by any other tenant of any other space in the Building.
<PAGE>
10. Nothing shall be done or permitted in a tenant's premises, and nothing
shall be brought into, or kept in or about a tenant's premises, which would
unreasonably or materially adversely affect, impair or interfere with any of the
Building Equipment or the proper and economical rendition of Landlord's Services
in the Building or to a tenant's premises, or which would cause discomfort,
annoyance or inconvenience to Landlord or any other tenant, nor shall there be
installed by any tenant any HVAC, electrical or other equipment of any kind
which, in the reasonable judgment of Landlord, might cause any such impairment
or interference. No tenant, nor the Invitees of any tenant, shall at any time
bring or keep upon its premises any inflammable, combustible or explosive fluid,
chemical or substance.
11. 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 locks or
the mechanism thereof, unless Landlord is furnished with keys therefor or other
means of access thereto. Duplicate keys for a tenant's premises and toilet rooms
shall be procured only from Landlord and Landlord may make a reasonable charge
therefor. Each tenant shall, upon the expiration or sooner termination of its
lease, turn over to Landlord all keys to stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys furnished by Landlord, such tenant shall pay to Landlord
the cost of replacement locks. Notwithstanding the foregoing, Tenant may install
a security system in the Premises which uses master codes or cards instead of
keys provided that Tenant shall provide Landlord with the master code or card
for such system.
12. All removals, the carrying in or out of the Building and the movement
from floor to floor within the Building of any safes, freight, furniture,
packages, boxes, crates or any other object or matter of any description, shall
take place only during such hours, in such elevators and under such restrictions
as Landlord may from time to time reasonably determine, which may involve
overtime work for Landlord's employees. Tenant shall reimburse Landlord for
extra costs incurred by Landlord in connection therewith. No such materials or
objects shall be transported in passenger elevators without Landlord's prior
written consent in each instance.
13. Landlord reserves the right to inspect all packages, objects and matter
to be brought into the Building and to exclude from the Building anything which
violates any of these Rules and Regulations or the applicable tenant's lease.
Landlord may require any person leaving the Building with any package or other
object or matter to submit a pass, listing such package, object or matter and
the tenant from whose premises the package, object or matter is being removed,
but the establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Landlord shall not be liable to
any tenant for damages or loss arising from the admission, exclusion or ejection
of any person to or from its premises or the Building under the provisions of
this Rule 13 or of Rule 16 hereof.
14. No tenant shall use or occupy, or permit any portion of its premises to
be used or occupied, for any of the following purposes: (a) sale of wine, ale,
beer or other
<PAGE>
alcoholic beverages kept in the Premises; (b) sale at wholesale or retail by
vending machines (except to Tenant's employees and business guests) or
otherwise, or demonstrations to the public, or as a restaurant or bar, of candy,
food, cigarettes, cigars, tobacco, newspapers, magazines, beverages or similar
items, or for the preparation, dispensing or consumption of food or beverages in
any manner whatsoever (except by Tenant's employees and business guests); (c)
manufacturing, printing or electronic data processing, except for the operation
of normal business office equipment and machines for Tenant's own requirements,
as distinguished from operation for commercial hire or for the sale of the
products or services to others; (d) rendition of medical, dental or other
diagnostic or therapeutic services, except that Tenant shall have the right to
employ a resident nurse for Tenant's employees normally working at the Premises;
(e) conduct or maintenance of any gambling or gaming activities or any political
activities or any club activities, whether private or public; (f) the offices or
business of a governmental or quasi-governmental bureau, department or agency,
foreign or domestic, including an autonomous governmental corporation or
diplomatic or trade mission, or any other person or entity entitled to
diplomatic or sovereign immunity; (g) a retail banking, trust company,
depository, guarantee or safe deposit business; (h) a retail savings bank,
savings and loan association or loan company; (i) sale to the public of
travelers checks, money orders, drafts, foreign exchange or letters of credit or
the receipt of money for transmission; (J) a stockbroker's or dealer's office or
the underwriting or sale of securities or for a public finance (personal loan)
business; (k) an employment agency, executive search firm or similar enterprise;
(1) a labor union, school or vocational training center (except for the training
of employees of Tenant intended to be employed at the Premises); (in) a barber
shop or beauty salon; (n) a travel agency; (o) as an office for a public
stenographer or public typist; (p)for the possession, storage, manufacture or
sale of narcotics or ; (q) telephone or telegraph agency, telephone or
secretarial service, or messenger service; or (r) labor union, classroom,
company engaged in the business of renting office or desk space. No tenant shall
engage or pay any employee on its premises, except those actually working for
such tenant on its premises, or advertise for laborers giving an address at the
Building.
15. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in the reasonable judgment of Landlord,
tends to impair the appearance or reputation of the Building or the desirability
of the Building as a building for offices, and upon written notice from
Landlord, such tenant shall refrain from and/or discontinue such advertising or
identifying sign; provided, however, that the foregoing shall not prohibit the
exhibition of a tenant's logo or trademark (from time to time) in its premises.
16. Landlord reserves the right to exclude from the Building during other
than business hours all Invitees of any tenant who do not present a pass to the
Building signed by Landlord. Landlord or its managing agent will furnish passes
to persons for whom any tenant requests the same in writing. Landlord reserves
the right to require all other persons entering the Building to sign a register,
to be announced to the tenant such person is visiting, and to be accepted as a
visitor by such tenant or to be otherwise properly identified (and, if not so
accepted or identified, reserves the right to exclude such persons from the
Building) and to require persons leaving the Building to sign a register or to
surrender the pass given to such person. Each tenant shall be responsible for
all persons for whom it requests any such pass or any person whom such tenant so
accepts, and such tenant shall be liable to Landlord for all acts
<PAGE>
or omissions of such persons. Any person whose presence in the Building at any
time shall, in the judgment of the Landlord, be prejudicial to the safety,
character, security, reputation or interests of the Building or the tenants
thereof may be denied access to the Building or may be removed from the
Building. In the event of invasion, riot, public excitement or other commotion,
Landlord may prevent all access to the Building during the continuance of the
same by closing the doors or otherwise, for the safety of tenants and the
protection of property in the Building.
17. Each tenant, before closing and leaving its premises at any time, shall
see that all lights are turned off. All entrance doors to a tenant's premises
shall be kept locked when such premises are not in use. Entrance doors shall not
be left open at any time unless a tenant occupies a full floor and then only
during business hours.
18. Each tenant shall, at the expense of such tenant, provide light, power
and water for the employees of Landlord, and the agents, contractors and
employees of Landlord, while doing janitorial service or other cleaning in such
tenant's premises and while making repairs in such tenant's premises.
19. No premises shall be used for lodging or sleeping or for any immoral or
illegal purpose.
20. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties unless under special instructions
from Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
22. There shall not be used in any space, or in the Public Areas, either by
any tenant or by others, in the moving or delivery or receipt of safes, freight,
furniture, packages, boxes, crates, paper, office material or any other matter
or thing, any hand trucks except those equipped with rubber tires, side guards
and such other safeguards as Landlord shall reasonably require. No hand trucks
shall be used in passenger elevators.
23. No tenant shall emit or discharge objectionable noise, fumes, vapors or
odors into the Building or Building Equipment or cause or permit any odors of
cooking or other processes, or any unusual or objectionable odors, to emanate
from its premises which would annoy other tenants or create a public or private
nuisance. No cooking shall be done in a tenant's premises except as is expressly
permitted in its lease.
24. All paneling, doors, trim or other wood products not considered
furniture shall be of fire-retardant materials. Before installation of any such
materials, certification of the materials' fire-retardant characteristics shall
be submitted to and approved by Landlord, and installed in a manner reasonably
approved by Landlord.
<PAGE>
25. No tenant shall without the consent of Landlord place, or cause or
permit to be placed, any radio or television antenna or other signal sending or
receiving device on the roof or on any other part of the outside of the Building
or any device, electrical or otherwise, in such tenant's premises which may
emanate electrical interference or radio waves which may impair radio or
television broadcasting or reception or the normal use of computers or other
electronic devices from or in the Building or elsewhere.
26. Each tenant shall comply, and cause its Invitees to comply, with all
rules and regulations from time to time established by Landlord in respect of
any parking garage servicing the Building to the extent used by Tenant or its
Invitees.
27. Any persons employed by a tenant to perform any repair, maintenance or
janitorial work within such tenant's premises shall, while in the Building and
outside of such tenant's premises, be subject to and under the control and
direction of Landlord (but not as an agent, servant or employee of Landlord),
and such tenant shall be responsible for all acts of such persons.
Alteration Rules and Regulations
A. General
1. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, a complete plan of the Premises, or of the floor on
which the Alterations are to occur. Drawings are to be complete with full
details and specifications for all of the Alterations.
2. The proposed Alterations must comply with the Administrative Code of The
City of New York and the rules and regulations of the Housing and Development
Administration of The City of New York and any other agencies having
jurisdiction.
3. No work shall be permitted to commence without the Landlord being
furnished with a valid permit from the Department of Buildings and/or other
agencies having jurisdiction, if required for such work.
4. All (a) demolition or removals, or (b) other categories of work if such
work would disturb or interfere with other tenants of the Building or disturb
Building operations, or (c) carrying in or out of construction materials to or
from the Building, must be scheduled and performed before or after normal
working hours and Tenant shall provide the Building manager with at least 24
hours' notice prior to proceeding with such work, and shall pay for any overtime
labor or engineering costs incurred by Landlord in connection therewith.
5. All inquiries, submissions, approvals and all other mailers shall be
processed through the Building manager.
B. Prior to Commencement of Work
<PAGE>
1. Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(a) A list of Tenant's contractors and/or subcontractors for
Landlord's approval, unless the names of same shall then be on the Approved
List.
(b) Four complete sets of plans and specifications properly stamped by
a registered architect or professional engineer if required by Article 8 of
the lease.
(c) A properly executed Building Notice application form or Alteration
form if required for the work; Engineer's Statement if HVAC work is to be
performed; Plumbing Specification sheet if any plumbing change is to be
performed
(d) Four executed copies of the Insurance Requirements agreement in
the form attached to these Rules and Regulations from Tenant's contractor
and if requested by Landlord from the contractor's subcontractors.
(e) Contractor's and subcontractor's insurance certificates including
a "hold harmless" in accordance with the Insurance Requirements agreement.
2. Landlord will return the following to Tenant:
(a) Plans approved or returned with comments (such approval or
comments shall not constitute a waiver of Department of Buildings approval
or approval of other jurisdictional agencies).
(b) Signed application forms referred to in B 1(c), above, providing
proper submissions have been made.
(c) Two fully executed copies of the Insurance Requirements agreement.
(d) Covering transmittal letter.
3. Tenant, with Landlord's cooperation, if reasonably required, shall
obtain Department of Buildings approval of plans and a permit from the
Department of Buildings where required by law for the work. Tenant shall be
responsible for keeping current all permits. Tenant shall submit copies of all
approved plans and permits to Landlord and shall post the original permit on the
Premises prior to the commencement of any work. All work, if performed by a
contractor or subeontractor, shall be subject to reasonable supervision and
inspection by Landlord's representative. Such supervision and inspection shall
be at Tenant's sole expense and Tenant shall pay Landlord's reasonable charges
for such supervision and inspection.
C. Requirements and Procedures
<PAGE>
1. All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers. When necessary, Landlord will require engineering and shop
drawings, which drawings must be approved by Landlord before work is started.
Drawings are to be prepared by Tenant and all approvals shall be obtained by
Tenant.
3. All demolition shall be supervised by Landlord's representative at
Tenant's expense.
4. Overtime Elevator service for construction work shall be charged to
Tenant. Prior arrangements for elevator use shall be made with Building manager
by Tenant. No material or equipment shall be carried under or on top of
elevators. If an operating engineer is required by any union regulations, such
engineer shall be paid for by Tenant.
5. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative at Tenant's expense. No work will be performed in building
mechanical equipment rooms without Landlord's approval and under Landlord's
supervision at Tenant's expense.
6. Tenant's contractor shall:
(a) have a Superintendent or Foreman on the Premises at all times when
work is being performed and at reasonable times before and after as
appropriate; orderly;
(b) police the job at all times, continually keeping the Premises
(c) elevators and lobbies; maintain cleanliness and protection of all
areas, including
(d) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(e) block off supply and return grills, diffusers and ducts to keep
dust from entering into the Building air conditioning system; and
(f) avoid the disturbance of other tenants.
7. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for the cost of corrective work done by Building porters
and other personnel.
<PAGE>
8. All equipment and installations must be equal to the standards of the
Building. Any deviation from Building standards will be permitted only if
indicated or specified on the plans and specifications and approved by Landlord.
9. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
10. Upon completion of the Alterations, Tenant shall submit to Landlord
properly executed documents indicating final approval by the Department of
Buildings of the Building Notice or Alteration accompanied by an amended
certificate of occupancy for the Building, if applicable, in form satisfactory
to Landlord.
11. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
12. Additional, differing or inconsistent provisions in the lease, if any,
will be applicable and will take precedence.
D. Special Reouirements Regarding Local Law #5/73 (As Amended)
1. Tenant acknowledges being advised that the Building has an active
Modified Class E Fire System ("Class E System"). Tenant shall notify its
contractors and subcontractors, as well as all persons and entities who shall
perform or supervise any alteration or demolition within the Premises, of such
facts.
2. Demolition by Tenant of all or any portions of the Premises shall be
carried out in such manner as to protect equipment and wiring of Landlord's
Class E System.
3. Landlord, after receipt of Tenant's notice of demolition, and at
Tenant's expense, shall secure and protect Building equipment connected to the
Class E System in the Premises to be demolished.
4. Landlord, at Tenant's expense, shall make such additions and alterations
within the requirements of Local Law #5/73 (as amended) to the existing Class E
System as may be necessary by reason of alterations made within the Premises
either by or on behalf of Tenant or by Landlord, as part of the initial
installation, and work, if any, that Landlord is required to perform pursuant to
the provisions of this lease or any work letter or leasehold improvements
agreement entered into by Landlord and Tenant.
5. Landlord's contract fife alarm service personnel shall be the only
personnel permitted to adjust, test, alter, relocate, add to, or remove
equipment connected to the Class E System.
6. Landlord, at Tenant's expense, shall repair or cause to have repaired,
any and all defects, deficiencies or malfunctions of the Class E System caused
by Tenant's alterations or demolition of the Premises. Such expense may include
expenses of engineering,
<PAGE>
supervision and standby fire watch personnel that Landlord deems necessary to
protect the Building during the time such defects, deficiencies and malfunctions
are being corrected.
7. During such times that Tenant's alterations or demolition of the
Premises require that fire protection afforded by the Class E System be
disabled, Tenant, at Tenant's expense, shall maintain fire watch service deemed
reasonably suitable to Landlord.
8. Tenant and Tenant's architect shall familiarize themselves with and be
aware of Local Law #5/73 and all amendments thereto with regard to smoke
control, compartmentation, and areas of safe refuge. Tenant shall fully comply
with these requirements. Landlord, at Landlord's option, may withhold approval
of Tenant's alterations or demolition if such requirements are not met with
Landlord's reasonable satisfaction.
9. Should Tenant desire to install its own internal fire alarm system,
Tenant shall request Landlord to connect such system to the Class E System at
Tenant's expense in such reasonable manner as prescribed by the Landlord. Tenant
shall, at Tenant's expense, have such internal fire alarm system approved by
governing agencies having jurisdiction, and shall submit to the Landlord an
approved copy of plans of such system, before initiating any installation of
such system.
10. In the event Tenant shall install its own internal fire alarm system
within the Premises and in such event (as required by law) requests Landlord to
connect same to the Class E System, then Tenant shall reimburse Landlord for its
costs incurred in making such connection within ten (10) days after being billed
therefor. Tenant shall also reimburse Landlord for costs of contracting for the
maintenance and supervision of Tenant's internal fire alarm system with the
company providing such services for the Class E System.
11. Tenant, at Tenant's expense, shall cause the Premises to be fully
sprinklered in accordance with the requirements of the Building code of The City
of New York and all applicable rules and regulations pertaining thereto and
Landlord shall, at Tenant's expense, connect same to the Building system.
Insurance Requirements for Alterations
1. Each contractor or subeontractor (hereinafter called "Contractor") shall
provide and maintain at its own expense, until completion of the Work, the
following insurance:
(a) Workers' Compensation and Employers' Liability Insurance covering
each and every workman employed in, about or upon the Work, as provided for
in each and every statute applicable to Workers' Compensation and
Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance Including Coverage for
Completed Operations, Broad Form Property Damage "XCU" exclusion if any
deleted,
<PAGE>
and Contractual Liability (to specifically include coverage for the
indemnification clause of this Agreement) for not less than the following
limits:
Total Combined Single Limit (primary and/or umbrella):
$5,000,000 (written on a per occurrence basis)
(c) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
Total Combined Single Limit (primary and/or umbrella):
$5,000,000 (written on a per occurrence basis)
Contractor shall furnish a certificate from its insurance carrier or carriers to
the Building office before commencing the Work, naming Landlord and its managing
agent, as additional insureds and showing that it has complied with the above
requirements regarding insurance, and providing that the insurer will give
Landlord ten (10) days' prior written notice of the cancellation of any of the
foregoing policies.
2. Contractor shall require all of its subeontractors engaged in the Work
to provide the above limits of insurance:
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
<PAGE>
Exhibit D
Form of Notice of Petition and Petition
[to be attached hereto]
<PAGE>
<TABLE>
<S> <C> <C>
============
[ ] Blumbergs X 211--Original notice of petition, Uniform Rules, 22NYCRR 21O.42(b), 3-89 JULIUS BLUMBERG, INC.,
Law Products Prepare 1 original. Use corresponding side of No. X21OC for carbon copies. PUBLISHER, NYC 10013
============
</TABLE>
CIVIL COURT OF THE CITY OF NEW YORK,
COUNTY OF NEW YORK Index No. L & T .......19..
<TABLE>
- --------------------------------------------------------------------------------
<S> <C> <C>
680 FIFTH AVENUE ASSOCIATES, L.P., Petitioner (Landlord) NOTICE OF PETITION
against HOLD OVER
CYGNE DESIGN, INC. Respondent (Tenant)
680 Fifth Avenue Address Petitioner's Residence:
New York, New York 10017
First name of Tenant and/or Undertenant being fictitious and unknown to
petitioner, Person intended being in possession of the premises herein Business Address:
described*
- --------------------------------------------------------------------------------
</TABLE>
To the respondent[s] above named and described, in possession of the
premises hereinafter described or claiming possession thereof:
PLEASE TAKE NOTICE that a hearing at which you must appear will be held at
the Civil Court of the City of New York, Non-Housing Part to be held at Part 52,
111 Centre Street, New York, New York
County of New York on _______________________ 19___ at 9:30 am/pm, on the
annexed petition of ____________________________________ which prays for a final
judgment of eviction, awarding to the petitioner the possession of premises
designated and described as follows: all offices on the 24th floor, at 680 Fifth
Avenue, New York, New York City of New York, County of New York and further
granting to the petitioner such other and further relief as is demanded in the
petition, which you must answer.
*TAKE NOTICE also that demand is made in the petition herein for judgment
against you, the respondent, for the sum of $___________________________________
with interest thereon from ______________________________ 19___.
TAKE NOTICE that your answer may set forth any defense or counterclaim you
may have against the petitioner.
TAKE NOTICE also that if you shall fail at such time to interpose and
establish any defense that you may have to the allegations of the petition, you
may be precluded from asserting such defense or the claim on which it is based
in any other proceeding or action.
**TAKE NOTICE also that your answer may be made at the time of hearing
specified above unless this Notice of Petition is served upon you on or before
________________________________ 19___ in which event you must answer at least 3
days before the petition is noticed to be heard, either orally before the clerk
of the court at his or her office or in writing by serving a copy thereof upon
the undersigned attorney for the*** petitioner, and by filing the original of
such written answer with proof of service thereof in the office of the clerk at
least 3 days before the time the petition is noticed to be heard; in addition
thereto, you must appear before the court at the time and place hereinabove set
forth for the hearing.
TAKE NOTICE that your failure to appear and answer may result in final
judgment by default for the petitioner in the amount demanded in the petition.
Dated:
BROWN RAYSMAN MILLSTEIN FELDER & STEINER LLP
By:
- --------------------------------------- ------------------------------------
Attorney(s) for Petitioner
Office & Post Office Address, Telephone
120 West 45th Street
New York, New York 10036
(212) 944-1515
*Delete if inapplicable.
**Delete this paragraph if the Notice of Petition is not served at least 8 days
prior to the return date.
***If the petitioner appears in person, strike out the words, "undersigned
attorney for the."
<PAGE>
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
- ------------------------------------X
680 FIFTH AVENUE ASSOCIATES, L.P., : Index No.
Petitioner, :
-against- : VERIFIED PETITION
CYGNE DESIGN, INC., :
Respondent. :
- ------------------------------------X
The petition of 680 Fifth Avenue Associates, L.P., shows that:
1. Petitioner is a domestic limited partnership and is the owner and
landlord of the building known as and located at 680 Fifth Avenue, New York, New
York (the "Building").
2. Respondent is a Delaware corporation and is the tenant of certain office
premises located on the sixteenth floor of the Building.
3. The term for said Premises occupied by Respondent expired on
____________________, 19___, pursuant to a Notice of Termination dated
____________________, 19___, copy of which with proof of service annexed hereto.
4. Respondent continues in possession of the Premises, without the
permission of Petitioner, after the expiration of said term.
<PAGE>
5. The Premises are occupied for business purposes and are not subject to
the New York City rent law (rent control) or the rent stabilization law.
6. Petitioner lacks written information or notice of any address where
Respondent has a place of business or principal office other than the address of
the property sought to be recovered.
WHEREFORE, Petitioner requests final judgment:
(a) awarding possession of the Premises to Petitioner and a judgment for
the use and occupancy of the Premises;
(b) issuance of a warrant to remove respondent from possession thereof; and
(c) such other and further relief as the Court may deem just and proper.
Dated: New York, New York
______________, 1999
680 FIFTH AVENUE ASSOCIATES, L.P.
Petitioner
<PAGE>
VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KENNETH M. BLOCK, affirms under penalty of perjury that he is one of the
attorneys for the petitioner; that he has read the foregoing petition and knows
the contents thereof; that the same are true to his own knowledge except as to
the matters stated upon information and belief; and as to those matters he
believes them to be true.
The grounds of deponent's belief as to all matters not stated upon
deponent's knowledge are as follows: statements and/or records provided by
petitioner, its agents and/or employees and contained in the file in the
attorney's office. This verification is made pursuant to the provisions of RPAPL
741.
Dated: New York, New York
______________, 1999
-------------------------------
KENNETH M. BLOCK
<PAGE>
NOTICE OF TERMINATION
TO: Cygne Design, Inc. 680 Fifth Avenue, 16th Floor
Tenant of Premises: New York, New York 10019
You are hereby notified that, pursuant to paragraph 2.02(a) of the
Agreement of Lease dated November __, 1999 between 680 Fifth Avenue Associates,
L.P. ("Landlord") and Cygne Design, Inc., Landlord elects to terminate your
tenancy of the Premises above described effective ____________________________.
Unless you remove from said Premises on ______________________________, the day
on which your term expires, Landlord will commence summary proceedings under the
statute to remove you from said Premises for the holding over after the
expiration of your term.
680 FIFTH AVENUE ASSOCIATES, L.P.
By: HENSEL FIFTH AVENUE ASSOCIATES, L.P.,
its General Partner
By: HENSEL 680 REALTY CORP.,
its General Partner
By:
----------------------------------------
Theodore Haft
President
<PAGE>
Exhibit E
Stipulation of Settlement
[to be attached hereto]
<PAGE>
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
- ------------------------------------X
680 FIFTH AVENUE ASSOCIATES, L.P., : Index No.
Petitioner, :
-against- : STIPULATION OF SETTLEMENT
CYGNE DESIGN, INC., :
Respondent. :
- ------------------------------------X
IT IS HEREBY STIPULATED AND AGREED, by and between the parties herein, and
their respective attorneys, as follows:
1. Respondent appears and interposes its answer to the petition as
hereinafter set forth in this stipulation.
2. Respondent admits the allegations in the petition and concedes that it
has no defenses thereto.
3. Respondent acknowledges and consents to the personal and subject matter
jurisdiction of this Court.
<PAGE>
4. Respondent consents to the entry of judgment awarding possession of the
Premises to petitioner and providing for the issuance of a warrant of eviction
forthwith.
Dated: New York, New York
______________, 1999
680 FIFTH AVENUE ASSOCIATES, L.P.
By:
------------------------------
Name:
Title:
CYGNE DESIGN, INC.
By: /s/ Bernard Manuel
------------------------------
Name: Bernard Manuel
Title: CEO
SO ORDERED:
- ----------------------------------
<PAGE>
VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of November, 1999, before me personally came Bernard Manuel
to be known, who, being by me duly sworn, did depose and say that (s)he resides
at 680 Fifth Ave. NY NY 10019; that (s)he is the Chief Executive Officer of
CYGNE DESIGN, INC., the corporation described in and which executed the
foregoing instrument; and that (s)he signed h__ name thereto by authority of the
board of directors of said corporation.
/s/ Christine A. Corr
------------------------------------
NOTARY PUBLIC
CHRISTINE A. CORR
Notary Public, State of New York
No. 41-4918087
Qualified in Oueens County
Commission Expires February 1, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from the
Company's Condensed Consolidated Balance Sheets and Condensed Consolidated
Statements of Operations and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-29-1999
<PERIOD-END> OCT-30-1999
<CASH> 3,988
<SECURITIES> 0
<RECEIVABLES> 4,703
<ALLOWANCES> 0
<INVENTORY> 1,694
<CURRENT-ASSETS> 15,728
<PP&E> 4,250
<DEPRECIATION> 1,706
<TOTAL-ASSETS> 18,822
<CURRENT-LIABILITIES> 13,838
<BONDS> 0
0
0
<COMMON> 124
<OTHER-SE> 4,860
<TOTAL-LIABILITY-AND-EQUITY> 18,822
<SALES> 49,526
<TOTAL-REVENUES> 49,526
<CGS> 45,612
<TOTAL-COSTS> 48,722
<OTHER-EXPENSES> 1,416
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 397
<INCOME-PRETAX> (1,009)
<INCOME-TAX> 47
<INCOME-CONTINUING> (1,056)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,056)
<EPS-BASIC> (0.08)
<EPS-DILUTED> (0.08)
</TABLE>
