SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998 Commission File No. 1-13082
KENNETH COLE PRODUCTIONS, INC.
(Exact name of Registrant as specified in its charter)
New York 13-3131650
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
152 West 57th Street, New York, NY 10019
(Address of Principal Executive Offices)
(212) 265-1500
Registrant's telephone number
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on Which Registered
------------------- -------------------
Class A common stock, par value $.01 per share New York Stock Exchange
Securities registered pursuant to Section 12 (g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No |_|
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. |_|
Aggregate market value of the voting stock held by nonaffiliates of the
registrant as of the close of business on March 26, 1999: $163,750,882.
Number of shares of Class A Common Stock, $.01 par value, outstanding as
of the close of business on March 26, 1999: 7,287,568.
Number of shares of Class B Common Stock, $.01 par value, outstanding as
of the close of business on March 26, 1999: 5,785,398.
DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part III of Form 10-K is incorporated herein by
reference to the Registrant's definitive proxy statement to be mailed to the
shareholders of the Registrant by April 30, 1999.
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Kenneth Cole Productions, Inc.
TABLE OF CONTENTS
PART I
Page
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Item 1 Business 3
Item 2 Properties 13
Item 3 Legal Proceedings 13
Item 4 Submission of Matters to a Vote of Security Holders 13
PART II
Item 5 Market for Registrant's Common Equity and Related Shareholder
Matters 14
Item 6 Selected Financial Data 15
Item 7 Management's Discussion and Analysis of Financial Condition and
Results of Operations 17
Item 7A Quantitative and Qualitative Disclosures about Market Risk 22
Item 8 Financial Statements and Supplementary Data 22
Item 9 Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure 22
PART III
Item 10 Directors and Executive Officers of the Registrant 23
Item 11 Executive Compensation 23
Item 12 Security Ownership of Certain Beneficial Owners and Management 23
Item 13 Certain Relationships and Related Transactions 23
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports on Form 8-K 24
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Item 1. Business
General
Kenneth Cole Productions, Inc. (the "Company"), incorporated in September
1982, designs, sources and markets a broad range of fashion footwear and
handbags, and through license agreements, designs and markets apparel and
accessories under its Kenneth Cole New York, Kenneth Cole Reaction and Unlisted
brand names. The Company's products are targeted to appeal to fashion conscious
consumers, reflecting a casual urban perspective and a lifestyle uniquely
associated with Kenneth Cole. These products include core basics, which
generally remain in demand from season to season, and fashion products that are
designed to establish or capitalize on market trends. The combination of basics
and fashion styles provides freshness in assortments and maintains a
fashion-forward image, while a multiple brand strategy insulates the Company
from a temporary downturn in business at any particular time. In addition to
footwear, the Company, through licensing agreements, offers a lifestyle
collection of men's product categories including tailored clothing, dress
shirts, sportswear, neckwear, briefcases, portfolios, jewelry, belts, scarves,
leather and fabric outerwear, sunglasses, eyewear, watches, luggage, hosiery,
underwear, robes, loungewear and small leather goods. Aside from footwear and
handbags, women's product categories sold pursuant to license agreements include
hosiery, small leather goods, belts, hats, gloves, scarves and wraps, leather
and fabric outerwear, sunglasses, eyewear, watches, jewelry and luggage.
The Company's strategy is to continue to build upon the strength of its
lifestyle brand franchise, which is comprised of three well-differentiated and
distinct brands: the premier Kenneth Cole New York lifestyle brand, Kenneth Cole
Reaction and Unlisted. This promotes the broadening of product offerings, which
attracts new customers and further enables the Company to address a wider
variety of customers' needs domestically and abroad. The Company markets its
products to more than 3,500 department and specialty store locations, as well as
through its consumer direct business, which includes an expanding base of retail
and outlet stores, consumer catalogs and an interactive website, including an
on-line store. The Company believes the diversity of its product offerings
distinguishes the Company from its competitors in terms of product categories
(men's, women's and children's footwear, handbags, apparel and accessories),
prices (from "better" to "moderate") and styling. The diversity of the Company's
product mix provides balance to its overall product sales and business planning
and increases sales opportunities to wholesale customers who do not carry the
Company's full range of products.
The Company continues to pursue opportunities to expand its retail
operations. As of December 31, 1998, the Company operated 54 specialty retail
and outlet stores as compared with 46 stores as of December 31, 1997, and plans
to open or expand approximately 8 to 10 stores in 1999. The Company believes
that the sales of footwear, handbags and licensed products through its specialty
retail stores increase consumer awareness of the Company's brands and reinforce
the Company's image. Additionally, outlet stores provide opportunities for the
Company to sell excess and out-of-season merchandise, thereby reducing the need
to sell such merchandise through its regular off-price channels of distribution
or to discounters at excessively low prices.
The Company continues to invest in the enhancement and visual presentation
of its existing website. The Company has existing capabilities in customer
service, including multiple toll-free telemarketing lines, merchandising,
catalog, fulfillment and an on-line store. Therefore, the Company believes it
has a strategic advantage over those just beginning with on-line commerce. The
Company believes that e-commerce will be an integral contributor in the
Company's future both as a source of consumer information and as a generator of
revenue.
The growing strength of the Company's three brands Kenneth Cole New York,
Kenneth Cole Reaction and Unlisted, provides opportunities, through licensing
agreements, to extend into new product categories and broader distribution
channels. The brands are currently licensed for a range of products consistent
with the Company's image (see "Licensing" in Item 1).
Products
The Company markets its products principally under its Kenneth Cole New
York, Kenneth Cole Reaction and Unlisted brand names; each are targeted to
appeal to different consumers. The Company believes that the Kenneth Cole brand
name has developed into a true aspirational lifestyle brand; while having
similar designer cache as other international designer brands, it has value
credibility most do not.
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Kenneth Cole New York
Kenneth Cole New York products are generally designed for the fashion
conscious consumer and reflect the relaxed urban sophistication that is
identified with the Kenneth Cole New York image. The distinctive hip styling of
this line has established Kenneth Cole as a fashion authority for sophisticated
urban men and women who are seeking a value alternative to other designer shoes,
handbags and accessories. As a result of strong brand name recognition and
reputation for style, quality and value, the Company believes that Kenneth Cole
New York has become a core resource for better department and specialty stores,
continuing to provide significant growth opportunities. The product offering has
evolved from a very trendy line to one with broad appeal, including both fashion
forward styling and core basics. The Company continues to leverage the strength
of the name through brand extensions (e.g., Kenneth Cole Collection), in-store
shops and the licensing of many new product categories.
Kenneth Cole New York men's footwear, primarily manufactured in Italy, is
designed as contemporary, comfortable fashion footwear and is sold to the
bridge-designer market at retail price points ranging from $130 to $175. As
versatile as it is sophisticated, Kenneth Cole New York men's footwear may be
worn to work, for a special occasion or on weekends with casual clothes.
Kenneth Cole New York women's footwear, primarily manufactured in Italy
and Spain, includes sophisticated and elegant dress, casual and special occasion
(e.g., bridal) and is sold to the bridge-designer market at retail price points
ranging from $100 to $140. Women's footwear is generally constructed with
leather soles and linings, and fabric uppers.
Kenneth Cole New York handbags are sleek designer bags offered at
affordable prices, generally made of quality leathers and are sold to the
bridge-designer market at retail price points ranging from $100 to $200. Certain
updated styles offer the customer high fashion day bags, while evening bags make
strong sophisticated statements in satins and updated silhouettes.
Kenneth Cole Reaction
Kenneth Cole Reaction consists of a variety of product classifications,
which address the growing trend toward flexible lifestyle dressing. Originally
introduced as a comfort-oriented casual line, Kenneth Cole Reaction now includes
more dressy styles as well. Kenneth Cole Reaction women's footwear is designed
for the workplace as well as outside the office, with an emphasis on comfort,
contemporary styling and perceived value and is targeted to compete in the
largest single category of footwear sold in department stores, women's "better"
casual. The majority of the line retails in the $60 to $80 price range. Kenneth
Cole Reaction men's footwear combines fashionable and versatile styling with
affordable pricing and represents the fastest growing classification in the
men's market as consumer preferences lean away from athletic constructed
footwear toward regular constructed footwear. This line retails in the $80 to
$120 price range.
Kenneth Cole Reaction handbags are designed to be multifunctional with a
contemporary look and are primarily made of non-leather technical fabrications,
such as nylon, microfiber and canvas. Kenneth Cole Reaction handbags, including
Essentials, Itemize and the Reactive collections, are one of the fastest growing
product classifications and have been created to meet the varying needs of the
Company's customers. This line generally retails at price points ranging from
$35 to $90.
Kenneth Cole Reaction children's footwear, primarily manufactured in
Brazil, includes dress and casual footwear sold at price points ranging from $40
to $75 and is targeted to boys and girls ages 5 to 16 who are making more of
their own fashion choices than ever before. The Company believes that the
expansion into children's footwear is a natural extension of its footwear
business and, by utilizing takedowns of successful performers of existing men's
and women's styles, greatly enhances the likelihood of product performance.
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Unlisted
Unlisted products are designed and targeted to the younger trendier
consumer market, the country's largest consumer base of fashion merchandise. The
Unlisted brand was developed to expand the Company's sales into a younger more
moderately priced business and includes approximately 30 styles of women's
casual and dress shoes and approximately 60 styles of handbags per season.
Unlisted footwear provides the junior consumer with a wide selection of
footwear with contemporary styling and quality at affordable prices. Unlisted
women's footwear includes not only fashion styles, but also evening styles,
basic pumps and loafers that generally retail at price points ranging from $30
to $50. In the first quarter of 1999, the Company launched Unlisted men's
footwear and is exploring distribution channels and licensing agreements to
further expand this brand.
Unlisted handbags are designed for the younger price-conscious
trend-driven consumer and consist of strong, trendy bags in vinyl, straw and
other exciting fabrications. Unlisted handbags generally retail at price points
ranging from $25 to $50.
Business Segments
The Company primarily distributes its products through Wholesale and its
own Consumer Direct distribution channels. During the periods presented below,
the percentage of net revenues contributed by the Company's business segments
were as follows:
Year Ended
December 31
-----------------------
1998 1997 1996
---- ---- ----
Wholesale 66% 71% 75%
Consumer Direct 30 26 23
Licensing 4 3 2
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Total 100% 100% 100%
=======================
Wholesale Operations
The Company strives to provide affordable fashion footwear, handbags and
accessories with consistent marketing and management support to its wholesale
customers. The Company provides this support by producing strong image driven
advertising, offering creative quality products and maintaining adequate
inventory levels of new products as well as products included in the Company's
open stock program. The Company employs independent wholesale agents as well as
salaried corporate account specialists to sell its products and to manage its
relationships with its wholesale customers, including analyzing and monitoring
their selling information.
The Company's products are distributed in more than 1,100 wholesale
accounts for sale in more than 3,500 store locations in the United States. The
Company markets its branded products to major department stores and chains, such
as the department store divisions of Dayton Hudson Corporation, Dillard
Department Stores, Inc., Federated Department Stores (including Macy's,
Bloomingdales, and Burdines), and Nordstrom, Inc., and upscale specialty
retailers, including Neiman Marcus and Saks Fifth Avenue. In addition, the
Company sells out-of-season branded products and overruns to off-price retailers
and through the Company's outlet stores. In addition, the Company sells its
products, directly or through distributors, to wholesale customers in Australia,
Canada, Hong Kong, Japan, Taiwan, the Philippines and Singapore.
The Company markets its product lines and introduces new styles at
separate industry-wide footwear and handbag tradeshows which occur several
times throughout the year in New York, Las Vegas and at various regional shows.
These shows also afford the Company the opportunity to assess preliminary demand
for its products. After each show, the Company's wholesale agents and corporate
account specialists visit customers to review the Company's product lines and to
secure purchase commitments. The Company's products are also displayed at
separate handbag and footwear showrooms in New York.
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Private Label
The Company also designs, develops and sources private label footwear and
handbags for selected retailers. These private label customers include major
retailers that do not purchase the Company's brands. The Company's private label
business requires minimal overhead and capital because the Company does not
incur any costs related to importing, shipping or warehousing of inventory, all
of which are borne by the retailer.
Consumer Direct Operations
Retail Operations
The Company continues to pursue several opportunities to enhance and
expand its retail operations. At December 31, 1998, the Company operated 38
specialty retail stores and 16 outlet stores under the Kenneth Cole New York
name.
The Company's retail stores are primarily operated to develop consumer
recognition of its brand names, to provide a showcase for Kenneth Cole branded
products marketed by the Company and its licensees and to enhance the Company's
overall profitability. The Company believes that these stores complement its
wholesale business by building brand awareness. In addition, Kenneth Cole retail
stores enable the Company to reach consumers who prefer the environment of a
specialty store. Approximately 20% to 25% of the Company's retail store products
are sourced exclusively for such stores which differentiate the product mix of
its stores from that of its wholesale customers. The Company opened six retail
stores in 1998, including two larger format showcase stores, and plans to open
or expand six or seven new full price stores in 1999. The two new larger format
stores were more than double in size than the Company's existing stores and
serve as showcases for a significant cross-section of the Company's offerings,
including apparel.
At December 31, 1998, the Company also operated 16 outlet stores. The
Company establishes its outlet stores to enable it to sell a portion of its
excess wholesale, retail and catalog inventory in a manner which it believes
does not have an adverse impact on its wholesale customers and the Company's
retail operations. The Company generally does not make a style available in its
outlet stores or to off-price retailers until wholesale customers have taken
their first markdown on that style. The Company anticipates that it will require
additional outlet stores as higher levels of sales are achieved and additional
retail stores are opened. The Company opened three outlet stores and closed one
in 1998 and plans to open two or three new stores in 1999.
The success of the Company's new and existing stores will depend on
various factors, including general economic and business conditions affecting
consumer spending, the acceptance by consumers of the Company's retail concept,
the ability of the Company to successfully manage such expansion and hire and
train personnel, the availability of desirable locations, the negotiation of
acceptable lease terms for new locations and the expansion of the Company's
management information systems to support the growth of its retail operations.
The Company believes that its retail stores, which further enhance its image,
also represent an opportunity for revenue and earnings growth.
Catalog, Website and Customer Service
The Company produces consumer catalogs that feature a variety of Kenneth
Cole New York and Kenneth Cole Reaction branded products. Catalog order-taking
and fulfillment have been performed by a third party service located in
Virginia. In 1999, the Company began performing fulfillment of footwear and
handbags from its distribution center in New Jersey.
The Company maintains a website to provide information regarding the
Company and its products, as well as to present a commercially viable
opportunity as visitors to the website may order selected products from the
Company's on-line store. During 1998, the Company enhanced its original website
Kennethcole.com, launched kc-reaction.com and kennethcolebridal.com and
partnered with Yahoo! for several cross promotions. The Company believes that
based on its existing merchandising, fulfillment and marketing capabilities, it
is well positioned to deliver an on-line commerce solution with nonpareil
customer service. The Company also
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maintains two toll-free telephone numbers (1-800-KEN-COLE and 1-800-UNLISTED)
which provide customer service and answer product-related questions.
Licensing
The Company views its licensing agreements as a vehicle to better service
its customers by extending its product offerings to meet more of their fashion
accessory needs without compromising on price, value or style. The Company
considers entering into licensing, joint venture and distribution agreements
with respect to certain products if such agreements provide more effective
sourcing, marketing and distribution of such products than could be achieved
internally. The Company continues to pursue opportunities in new product
categories which are believed to be complementary to its existing product lines.
Licensees range from small to medium size manufacturers to companies that
are among the industry leaders in their respective product categories. The
Company selects licensees that it believes can produce and service quality
fashion products consistent with the Kenneth Cole New York, Kenneth Cole
Reaction and Unlisted brand images. The Company's licensing department
communicates its design ideas and coordinates all marketing efforts
with its licensees. The Company generally grants licenses for three to five
years with renewal options, limits licensees to certain territorial rights, and
retains the right to terminate the license if certain specified sales levels are
not attained. Each license provides that the Company has the right to review,
inspect and/or approve all product designs and quality as well as any use of its
trademarks in packaging, advertising and marketing.
In 1998, for the first time, Kenneth Cole was seen on the runway during
the Menswear New York Collections. This was an important step in further
defining Kenneth Cole as a premier lifestyle brand as its distinctive image is
consistently developed across an expanding number of products, brands and
markets.
The following table summarizes the Company's licensed product categories:
Kenneth Cole Kenneth Cole
Product Category New York Reaction Unlisted
Kid's Leather Outerwear X X
Kid's Belts X X
Kid's Legwear X X
Kid's Sunglasses X X
Men's Tailored Clothing X
Men's Sportswear X X
Men's Neckwear X X
Men's Underwear, Robes, Loungewear X X
Men's Dress Shirts X X
Men's Hosiery X X
Men's Leather & Fabric Outerwear X X
Men's Small Leather Goods X X X
Women's Legwear X X X
Women's Small Leather Goods X X X
Women's Leather & Fabric Outerwear X X
Men's/Women's Scarves & Wraps X X
Men's/Women's Hats & Gloves X X
Men's/Women's Belts X X X
Men's/Women's Jewelry X
Men's/Women's Watches X X
Men's/Women's Optical Frames X X
Men's/Women's Luggage/Briefcases X X X
Men's/Women's Sunglasses X X X
All of the Company's licensees are required to contribute to the Company a
percentage of their net sales of licensed product, subject to minimum amounts,
for the ongoing marketing of the Kenneth Cole brands.
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International
The Company sells its products, directly or through distributors, to
wholesale customers in Australia, Canada, Hong Kong, Japan, Taiwan, the
Philippines and Singapore. The Company plans to continue to expand its
international licensing and wholesale distribution programs as a means of
developing global brand recognition and creating additional wholesale markets
for its products. The Company also operates one retail store in the Netherlands.
The Company has a licensing agreement with Dickson Concepts, Ltd.
("Dickson") to retail Kenneth Cole New York and Kenneth Cole Reaction branded
products throughout Hong Kong, Taiwan and Singapore through free standing
Kenneth Cole retail stores, leased departments and shop-in-shops. In spite of
the challenging economic climate in Asia, ten shops have been opened pursuant to
this agreement. During 1998, the Company also entered into an agreement to
retail the Company's branded products throughout the Philippines. The
international stores' format and product mix are consistent with that of the
Company's Kenneth Cole New York domestic retail stores. In connection with the
Company's business strategy of enhancing and expanding its international
operations, the Company is considering other licensing and distribution
opportunities.
In 1998, the Company expanded its presence in Canada by choosing different
partners with individual competencies, while consolidating marketing,
advertising and distribution with one brand manager. The Company, through
license agreements, now sells most product classifications in Canada.
Design
Kenneth D. Cole, Chief Executive Officer and President, founded the
Company and its success to date is largely attributable to his design talent,
creativity and marketing abilities. Mr. Cole selects designers to join a design
team to work with him in the creation and development of new product styles.
Members of each design team work together with Mr. Cole to create a design that
they believe fits the Company's image, reflects current or approaching trends
and can be manufactured cost-effectively.
The Company's design teams constantly monitor fashion trends and search
for new inspirations. Members of the various teams travel extensively to assess
fashion trends in Europe, the United States and Asia and work closely with
retailers to monitor consumer preferences. The process of designing and
introducing a new product takes approximately three to four months. Once the
initial design is complete, a prototype is developed, reviewed and refined prior
to commencement of production.
In order to reduce the impact of changes in fashion trends on the
Company's product sales and to increase the profitability of the Company's
products, the Company continuously seeks to develop new core basic product
styles that remain fashionable from season to season without significant changes
in design or styling. Since these core basic products are seasonless, retailers'
inventories of core basic products tend to be maintained throughout the year and
reordered as necessary, primarily through electronic data interchange.
Sourcing
The Company does not own or operate any manufacturing facilities and
sources its branded and private label products directly or indirectly through
independently owned manufacturers in Italy, Spain, Brazil, India, China and
Korea. The Company maintains offices in Florence, Italy and Hong Kong and
generally has long-standing relationships with several independent buying agents
to monitor the production, quality and timely distribution of the Company's
products from its manufacturers. The Company sources each of its product lines
separately based on the individual design, styling and quality specifications of
such products.
The Company attempts to limit the concentration of manufacturing with any
one manufacturer. However, approximately 58% and 36% of men's footwear was
produced by one manufacturer in Italy in 1998 and 1997, respectively, and
approximately 46% of the dollar value of total handbags purchased by the Company
in 1998 were produced by one manufacturer in China. These manufacturers,
however, subcontract a significant portion of such purchases to ensure the
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consistent and timely delivery of quality products. The Company is the largest
customer of these manufacturers and has established long-standing relationships
with them. While the Company believes it has alternative manufacturing sources
available to meet its current and future production requirements, there can be
no assurance that in the event the Company is required to change from current
manufacturers, alternative suppliers will be available on terms comparable to
the Company's existing arrangements.
In advance of the Fall and Spring selling seasons, the Company works with
its manufacturers to develop product prototypes for industry trade shows. During
this process, the Company works with the manufacturers to determine production
costs, materials, break-even quantities and component requirements for new
styles. Based on indications from the trade shows and initial purchasing
commitments from wholesalers, the Company places production orders with the
manufacturers. As a result of the need to maintain in-stock inventory positions,
the Company places manufacturing orders for open stock and certain fashion
products prior to receiving firm commitments. Once an order has been placed, the
manufacturing and delivery time ranges from three weeks to four months depending
on whether it is currently in production or a new product. Throughout the
production process, the Company monitors product quality through inspections at
both the factories and upon receipt at its warehouses. To reduce the risk of
overstocking, the Company monitors sell-through data on a weekly basis and seeks
input on product demand from wholesale customers to adjust production when
needed.
Advertising and Marketing
The Company believes that advertising to promote and enhance the Kenneth
Cole New York and Kenneth Cole Reaction brands is an intricate part of its
long-term growth strategy. The Company believes that its advertising campaigns,
which have brought it national recognition for their timely focus on current
events and social issues, have resulted in increased sales and consumer
awareness of its branded products. The Company's advertisements appear in
magazines such as Vogue, Vanity Fair, Details, GQ, Glamour and Marie Claire,
newspapers and outdoor advertising media. All of the Company's licensees are
required to contribute to the Company a percentage of their net sales of
licensed product, subject to minimums, for the advertising and promotion of the
Kenneth Cole trademark. In addition, selected personal appearances by Kenneth D.
Cole have been utilized to further enhance the Company's image. The Company
utilizes in-house advertising and public relations staff to implement these
efforts.
In order to continue to strengthen brand awareness of its products and
increase sales, the Company is actively involved in the development, marketing
and merchandising programs for its customers. As part of this effort, the
Company utilizes cooperative advertising programs, sales promotions and produces
consumer catalogs which feature a variety of Kenneth Cole New York and Kenneth
Cole Reaction branded products marketed by the Company and its licensees. In
addition, the Company has, on a limited basis, worked with customers to develop
distinctive catalogs that market the Company's products and to develop point of
sale displays. Because all this work is done internally, there is a singular
focus, a strong synergy and a consistency to all communications.
An important developing aspect of the Company's marketing efforts is the
creation of shop-in-shops, where an entire collection of the Company's branded
products is featured, along with focus areas, where specific product categories
are highlighted. These shop-in-shops and focus areas create an environment that
is consistent with the Company's image and enables the retailer to display and
stock a greater volume of the Company's products per square foot of retail
space. In addition, these shop-in-shops and focus areas encourage longer-term
commitment by retailers to the Company's products and enhance consumer brand
awareness.
Distribution
To facilitate distribution, the Company's products are inspected, bar
coded, packed and shipped from manufacturers by ocean or air to either the
Company's distribution facility located in Secaucus, New Jersey or a public
warehouse located in California. The Company utilizes fully integrated
information systems and bar code technology to facilitate the receipt,
processing and distribution of product through both distribution facilities. The
products are then shipped to the Company's wholesale customers either in bulk or
under its open stock program. The Company's open stock program allows its
wholesale customers to reorder, typically via electronic data interchange
("EDI"), core basic styles in a range of colors and sizes for immediate
shipment. While the open stock program requires an increased investment in
inventories, the Company believes this program is an important service for its
wholesale customers by allowing them to manage inventory levels more
effectively. The Company believes that
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affording customers improved flexibility in ordering specific SKUs in smaller
quantities will ultimately reduce the incidence of markdowns and allowances.
Management Information Systems
The Company believes that sophisticated information systems are essential
to the Company's ability to maintain its competitive position and to support
continued growth. The Company's management information systems were designed to
provide, among other things, comprehensive order processing, production,
accounting and management information for the sourcing, importing, distribution
and marketing aspects of the Company's business. The Company is currently in
process of replacing its wholesale distribution and financial systems with newer
technologically advanced systems that offer greater functionality and enhanced
reporting. These new systems are Year 2000 compliant and are expected to be
implemented prior to any anticipated impact on the current operating system. The
Company also utilizes an EDI system which provides a computer link between the
Company and many of its wholesale customers that enables the Company to receive
on-line orders and to accumulate sales information on its products. The
Company's EDI system also improves the efficiency of responding to customer
needs and allows both the customer and the Company to monitor purchases,
shipments and invoicing. In its retail stores, the Company uses point-of-sale
registers to capture sales data and track inventories.
The Company regularly evaluates the adequacy of its management information
systems and upgrades such systems to support its growth. However, the Company's
failure to continue to upgrade its management information systems necessary to
support growth or expansion, or to continue to timely address the Year 2000
Issue, could have a material adverse effect on the Company's financial condition
and its results of operations (see Item 7, "Management's Discussion and Analysis
of Financial Condition and Results of Operations").
Trademarks
The Company, through its wholly-owned subsidiary, K.C.P.L., Inc., owns
federal registrations for its principal trademarks Kenneth Cole, Kenneth Cole
New York, Kenneth Cole Reaction, and Unlisted as well as several other ancillary
and derivative trademarks. Each of the federal registrations are currently in
full force and effect and are not the subject of any legal proceedings. In
addition, the Company has several pending federal applications in the United
States Patent and Trademark office for trademarks and service marks including
Kenneth Cole Collection, Reaction and several ancillary trademarks. Moreover,
the Company continues to expand its current international registrations in
numerous countries in Asia, South America, Europe and elsewhere. The Company
regards its trademarks and other proprietary rights as valuable assets in the
marketing and distribution of its products, and fully intends to maintain and
renew the registrations as well as vigorously defend against infringements.
Competition
Competition in the footwear and handbags industries is intense. The
Company competes with numerous designers, brands and manufacturers of footwear,
handbags, apparel and accessories, some of which may be larger, have achieved
greater recognition for their brand names, have captured greater market share
and/or have substantially greater financial, distribution, marketing and other
resources than the Company. The Company also competes for the limited
shelf-space available for the display of its products to the consumer. Moreover,
the general availability of contract manufacturing capacity allows access by new
market entrants. The Company's business depends on its ability to stimulate and
respond to changing consumer preferences by producing innovative and attractive
products, brands and marketing, while remaining competitive in quality and
price.
Foreign Operations
The Company's business is subject to risks of doing business abroad, such
as fluctuations in currency exchange rates, local market conditions, labor
unrest, political instability and the imposition of additional regulations
relating to imports, including quotas, duties or taxes and other charges on
imports. While these factors have not had a material adverse impact on the
Company's operations to date, there can be no assurance that they will not have
a material adverse affect on the Company's operations in the future.
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In order to reduce the risk of exchange rate fluctuations, the Company
routinely enters into forward exchange contracts to protect the future purchase
price of inventory denominated in foreign currencies. These forward exchange
contracts are used to reduce the Company's exposure to changes in foreign
exchange rates and are not held for the purpose of trading or speculation (see
Item 7, "Management's Discussion and Analysis of Financial Condition and Results
of Operations").
Import Restrictions
Although the majority of the goods sourced by the Company are not
currently subject to quotas, countries in which the Company's products are
manufactured may, from time to time, impose new or adjust prevailing quotas or
other restrictions on exported products. In addition, the United States may
impose new duties, tariffs and other restrictions on imported products, any of
which could have a material adverse affect on the Company's operations and its
ability to import its products at the Company's current or increased quantity
levels. In accordance with the Harmonized Tariff Schedule, a fixed duty
structure in effect for the United States, the Company pays import duties on its
products ranging from approximately 6% to 37.5%, depending on the principal
component of the product. Other restrictions on the importation of footwear and
other products are periodically considered by the United States government and
no assurance can be given that tariffs or duties on the Company's goods may not
be raised, resulting in higher costs to the Company, or that import quotas
restricting such goods may not be imposed or made more restrictive.
A significant portion of the Company's products is manufactured in and
imported from China. The Company's operations and its ability to import products
from China at current tariff levels could be materially and adversely affected
if the "most favored nation" status granted to China by the United States
government for trade and tariff purposes is terminated. As a result of such
status, products imported by the Company from China currently receive the lower
tariff rates made available to most of the United States' major trading
partners. While China has been granted "most favored nation" status in every
year since 1979, there can be no assurance that the United States will continue
to grant China "most favored nation" status in the future. In the event that
such status is not renewed in future years, tariff levels on imports from China
could rise significantly and could have a material adverse effect on the
Company's results of operations. However, the Company believes that it would be
able to shift production of certain goods to other countries on a cost effective
basis and to continue to produce in China those goods subject to lower tariff
rates.
Seasonality
The Company's products are marketed primarily for Fall and Spring seasons,
with slightly higher volume of wholesale products sold during the first and
third quarters. The Company's retail business follows the general seasonal
trends that are characteristic within the retail industry: sales and earnings
are highest in the fourth quarter and weakest in the first quarter. Because the
timing of wholesale shipments of products for any season may vary from year to
year, the results for any one quarter may not be indicative of the results for
the full year.
Customers Under Common Control
The Company's department store customers include major United States
retailers, certain of which are under common ownership. In 1998, the Company had
no customer or group under common ownership account for more than 10% of sales.
In 1997, when considered together as a group under common ownership, sales to
the department store customers which were owned by Federated Department Stores
and sales to The Marmaxx Group represented 10.0% and 12.4% of the net sales of
the Company, respectively. The Company's ten largest customers represented 44.5%
and 51.3% of the Company's net sales for the years ended December 31, 1998 and
1997, respectively. While the Company believes that purchasing decisions have
generally been made independently by each division within a department store
group, there is a trend among department store groups toward centralized
purchasing decisions of their divisions.
11
<PAGE>
Backlog
At December 31, 1998 and 1997, the Company had unfilled wholesale customer
orders of $32.1 million and $32.3 million, respectively. The Company's backlog
at a particular time is affected by a number of factors, including seasonality,
timing of market weeks, and wholesale customer purchases of its core basic
products through the Company's open stock program. Accordingly, a comparison of
backlog from period to period may not be indicative of eventual shipments.
Employees
At December 31, 1998, the Company had approximately 1000 employees, 135 of
whom are covered under a collective bargaining agreement with a local affiliate
of the International Leather Goods, Plastics, Handbags and Novelty Workers'
Union, Local 1, Division of Local 342-50 United Food and Commercial Workers
Union. The Company considers its relationships with its employees to be
satisfactory.
Directors and Executive Officers
Name Age Present Position
- ---- --- ----------------
Kenneth D. Cole.... 45 President and Chief Executive Officer
Paul Blum.......... 39 Executive Vice President and Chief Operating Officer
Stanley A. Mayer... 51 Executive Vice President and Chief Financial Officer
Harry Kubetz....... 45 Senior Vice President
Susan Hudson....... 39 Senior Vice President
Robert Grayson..... 54 Director
Denis F. Kelly..... 49 Director
Jeffrey G. Lynn.... 49 Director
Kenneth D. Cole has served as the Company's President and Chief Executive
Officer since its inception in 1982. Mr. Cole was a founder, and from 1976
through 1982, a senior executive of El Greco, Inc., a shoe manufacturing and
design company which manufactured Candie's women's shoes. Mr. Cole is on the
Boards of Directors of the American Foundation for AIDS Research ("AmFAR") and
H.E.L.P., a New York agency that provides temporary housing for the homeless. In
addition, Mr. Cole is a Director and President of each of the wholly-owned
subsidiaries of the Company.
Paul Blum was promoted to Chief Operating Officer in February 1998. Prior
he served as Executive Vice President of the Company since May 1996 and as
Senior Vice President from August 1992 until May 1996. Mr. Blum joined the
Company in 1990. From 1982 until 1990, Mr. Blum served as Vice President and was
a principal shareholder of The Blum Co., a fashion accessory firm, the assets of
which were purchased in 1990 by the Company.
Stanley A. Mayer has served as Executive Vice President, Chief Financial
Officer, Treasurer and Secretary of the Company since March 1988. From 1986
until joining the Company, Mr. Mayer held the position of Vice President-Finance
and Administration of Swatch Watch USA, Inc. Mr. Mayer was the Controller of the
Ralph Lauren and Karl Lagerfeld womenswear divisions of Bidermann Industries,
USA, Inc. from 1979 until 1986. In addition, Mr. Mayer is the Vice President and
Secretary of each of the wholly-owned subsidiaries of the Company.
Harry Kubetz has served as Senior Vice President of Operations since
joining the Company in April 1996. Mr. Kubetz was President of "No Fear"
Footwear, Inc. from 1994 until 1996. From 1992 until 1994 Mr. Kubetz was
Executive Vice President of Asco General Supplies, a wholly owned subsidiary of
Pentland, PLC.
Susan Q. Hudson was promoted to Senior Vice President - wholesale footwear
in February 1998. Prior, Ms. Hudson served as Divisional President - Men's
Footwear since 1996 and as Vice President in charge of men's footwear since
1990. Prior to joining the Company, Ms. Hudson was at LA Gear, where she served
as Regional Sales Manager.
12
<PAGE>
Robert C. Grayson is President of Robert C. Grayson & Associates, Inc. and
Vice Chairman of Berglass-Grayson, consulting firms. From 1992 to 1996, Mr.
Grayson served initially as an outside consultant to Tommy Hilfiger Corp., a
wholesaler and retailer of men's sportswear and boyswear, and later accepted
titles of Chairman of Tommy Hilfiger Retail, Inc. and Vice Chairman of Tommy
Hilfiger Corp. From 1970 to 1992, Mr. Grayson served in various capacities for
Limited Inc., including President and CEO of Lerner New York from 1985 to 1992,
and President and CEO of Limited Stores from 1983 to 1985.
Denis F. Kelly is a Managing Director and the head of the Mergers and
Acquisitions Department at Prudential Securities Incorporated since July 1993.
From 1991 until 1993, Mr. Kelly was President of Denbrook Capital Corp., a
merchant banking firm. Mr. Kelly was at Merrill Lynch from 1980 to 1991, where
he served as Managing Director, Mergers & Acquisitions from 1984 to 1986, and
then as a Managing Director, Merchant Banking, from 1986 to 1991. Mr. Kelly is a
director of MSC Industrial Direct, Inc.
Jeffrey G. Lynn has been the Chairman, President and Chief Executive
Officer of Dunham's Athleisure Corp., a specialty retailer of sportswear, since
1987. Mr. Lynn joined Dunham's Athleisure Corp. in 1985 and served as president
until 1987. Prior to 1985, he served as Executive Vice President of the
Musicland Group, a specialty retailer of audio/video entertainment software. Mr.
Lynn is a director of English Gardens and Fairlane Florists, Inc. and SOL
Capital Management Company.
Item 2. Properties
The Company's showrooms, sales and design staffs as well as its executive
offices are located at 152 West 57th Street, New York, N.Y., where the Company
leases approximately 30,000 square feet under a lease that expires December 31,
2006.
The Company's administrative offices and distribution facility are located
in Secaucus, New Jersey under a lease that expires June 29, 2002. The facility
comprises 244,000 square feet, of which, approximately 30,000 square feet is
used for administrative offices. The Company also leases a 23,500 square foot
facility in Secaucus used for outlet store space and as a warehousing facility.
The Company has technical and administrative offices in Florence, Italy and Hong
Kong. The Company does not own or operate any manufacturing facilities.
The Company leases space for all of its 38 full price retail stores
(aggregating approximately 93,000 square feet) and 16 outlet stores (aggregating
approximately 46,000 square feet). Generally, the leases provide for an initial
term of five to ten years, with renewal options permitting the Company to extend
the term thereafter.
In December 1998, the Company entered into a 15-year lease, which over a
period of two to five years, will provide the Company with approximately 120,000
square feet of office space, enabling it to relocate its corporate headquarters
to a larger location in New York City and consolidate various satellite office
space.
Item 3. Legal Proceedings
The Company is, from time to time, a party to litigation that arises in
the normal course of its business operations. The Company is not presently a
party to any such litigation that would have a material adverse effect on its
business or operations.
Item 4. Submission of Matters to a Vote of Security Holders
None.
13
<PAGE>
PART II
Item 5. Market for Registrant's Common Equity and Related Shareholder Matters
The Company's Class A Common Stock is listed and traded (trading symbol
KCP) on the New York Stock Exchange ("NYSE"). On March 26, 1999 the closing sale
price for the Class A Common Stock was $23.69. The following table sets forth
the high and low sale prices for the Class A Common Stock for each quarterly
period for 1997 and 1998, as reported on the NYSE Composite Tape:
1997: High Low
First Quarter 22 3/4 15 1/8
Second Quarter 21 1/8 14 1/4
Third Quarter 17 13/16 11 1/2
Fourth Quarter 16 15/16 13 1/8
1998: High Low
First Quarter 22 3/8 15 7/16
Second Quarter 26 3/4 19 3/16
Third Quarter 26 7/16 12 15/16
Fourth Quarter 21 3/8 13 7/8
The number of shareholders of record of the Class A Common Stock on March
26, 1999 was 35.
There is one holder of record of Class B Common Stock and 5,785,398 shares
of Class B Common Stock are issued and outstanding. There is no established
public trading market for the Company's Class B Common Stock.
Dividend Policy
The Company intends to retain its earnings to finance the development,
expansion and growth of its existing business. Accordingly, the Company does not
anticipate paying cash dividends on its Class A Common Stock in the foreseeable
future. The payment of any future dividends will be at the discretion of the
Company's Board of Directors and will depend upon, among other things, future
earnings, operations, capital requirements, the financial condition of the
Company and general business conditions.
14
<PAGE>
Item 6. Selected Financial Data
The following selected financial data has been derived from the
consolidated financial statements of the Company and should be read in
conjunction with the consolidated financial statements and notes thereto that
appear elsewhere in this Annual Report and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" set forth in Item 7.
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- -------
(dollars in thousands, except share data)
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales .................................. $219,781 $185,278 $148,258 $113,828 $84,893
Licensing revenue .......................... 8,357 6,028 3,575 1,855 795
Net revenue ................................ 228,138 191,306 151,833 115,683 85,688
Cost of goods sold ......................... 129,403 112,183 86,919 67,382 50,166
Gross profit ............................... 98,735 79,123 64,914 48,301 35,522
Selling and general administrative
expenses (1) ........................... 72,145 58,330 44,248 31,957 22,776
Loss on abandonment of leasehold
improvements and equipment .............. 106
Operating income ........................... 26,590 20,793 20,560 16,344 12,746
Interest income (expense), net ............. 404 (202) (22) 30 (25)
Income before provision for income taxes ... 26,994 20,591 20,538 16,374 12,721
Provision for income taxes ................. 10,663 8,189 8,251 6,550 2,894
Net income ................................. 16,331 12,402 12,287 9,824 9,827
Earnings per share:
Basic ................................... $1.24 $.94 $.94 $.75
Diluted ................................. $1.20 $.91 $.90 $.73
Weighted average shares outstanding:
Basic ................................... 13,222,000 13,162,000 13,109,000 13,021,000
Diluted ................................. 13,637,000 13,605,000 13,578,000 13,516,000
</TABLE>
<TABLE>
<S> <C>
Pro Forma Income Statement Data:(2)
Net sales ........................................................................................... $84,893
Licensing revenue ................................................................................... 795
Net revenue ......................................................................................... 85,688
Cost of goods sold .................................................................................. 50,166
Gross profit ........................................................................................ 35,522
Selling, general and administrative expenses ........................................................ 22,776
Operating income .................................................................................... 12,746
Interest, net ....................................................................................... (25)
Income before provision for income taxes ............................................................ 12,721
Provision for income taxes .......................................................................... 5,088
Net income .......................................................................................... 7,633
Supplementary pro forma basic net income per share .................................................. $.61
Supplementary pro forma diluted net income per share ................................................ $.60
Supplementary pro forma basic shares outstanding (3) ................................................ 12,464,000
Supplementary pro forma diluted shares outstanding (3) .............................................. 12,690,000
</TABLE>
15
<PAGE>
At December 31,
---------------
1998 1997 1996 1995 1994
------- ------- ------- ------- -------
Balance Sheet Data:
Working capital................ $56,644 $46,949 $37,023 $27,309 $18,701
Total assets................... 96,680 77,528 65,255 43,307 31,886
Total debt, including current
Maturities.................. 927 0 489 102 166
Total shareholders' equity..... 73,689 59,740 46,599 33,489 22,356
- ----------
(1) Includes shipping and warehousing expenses.
(2) Reflects the effect on the historical income statement data for the year
ended December 31, 1994 as if the Company's initial public offering, which
was consummated in June 1994, had been completed as of January 1, 1994 and
the Company was treated as a C Corporation filing on a consolidated return
basis for income tax purposes, with an assumed effective income tax rate
of 40%.
(3) For 1994, supplementary pro forma shares includes the weighted average
shares outstanding (12,464,000) during the period, increased by 226,280
shares from applying the treasury stock method to the exercise of options
to purchase 222,950 and 373,900 shares of Class A Common Stock at $2.1875
and $6.00 per share, respectively.
16
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The following discussion and analysis should be read in conjunction with
the consolidated financial statements and the notes thereto that appear
elsewhere in this Annual Report.
Results of Operations
The following table sets forth certain operating data of the Company as a
percentage of net revenues for the periods indicated below:
Year Ended December 31,
-----------------------
1998 1997 1996
--------------------------
Net sales ........................................ 96.3% 96.8% 97.6%
Licensing revenue ................................ 3.7 3.2 2.4
--------------------------
Net revenues ..................................... 100.0 100.0 100.0
Cost of goods sold ............................... 56.7 58.6 57.2
--------------------------
Gross profit ..................................... 43.3 41.4 42.8
Selling, general and administrative expenses ..... 31.6 30.5 29.2
Operating income ................................. 11.7 10.9 13.6
Income before provision for income taxes ......... 11.9 10.8 13.5
Provision for income taxes ....................... 4.7 4.3 5.4
--------------------------
Net income ....................................... 7.2% 6.5% 8.1%
==========================
Year Ended December 31,1998 Compared to Year Ended December 31,1997
Consolidated net revenues were $228.1 million in 1998 compared to $191.3
million in 1997, an increase of 19.3%. This improvement is principally due to
volume increases in each of the Company's business segments: wholesale, consumer
direct and licensing.
Wholesale net sales (including sales to its consumer direct business
segment) increased $20.1 million or 13.4% to $170.1 million in 1998 from $150.0
million in 1997. This increase is primarily attributable to an increase in sales
of men's footwear of approximately 60%, an increase in handbag sales of
approximately 15%, an increase in sales of private label products of
approximately 30%, and sales of children's footwear, which was a new product
classification introduced at the end of 1997, partially offset by a reduction in
sales of women's footwear due to an extremely challenging women's footwear
retail environment. The overall increase is due to increased sales to new and
existing customers due to increased brand awareness and continued growing
consumer acceptance of Kenneth Cole New York as a premier lifestyle brand. The
Company believes its advertising campaigns, marketing efforts, website, catalogs
and growing retail presence, combined with the marketing efforts of its
licensees, continue to be significant factors in increasing consumer demand and
the strengthening of its three distinct brands, Kenneth Cole New York, Kenneth
Cole Reaction and Unlisted across all product classifications.
Net sales in the Company's Consumer Direct segment increased $18.4 million
or 36.8% to $68.4 million in 1998 from $50.0 million in 1997. The increase in
the number of stores, as well as a comparable stores sales increase of 13.5%
contributed to the increase in net sales. Of the total increase, $6.7 million
was attributable to the comparable store sales increase, and $11.7 million was
attributable to stores opened since December 31, 1997. The Company believes that
the retail stores convey the image of the Company and seamlessly showcase both
Company and licensee products, and that this comprehensive presentation
reinforces the lifestyle brand, thus increasing consumer demand, not only in the
retail stores but also across all channels of distribution.
Licensing revenue increased 38.6% to $8.4 million in 1998 from $6.0
million in 1997, and sales of licensee product now represent approximately half
of the total brand sales at retail. The increase primarily reflects incremental
revenues from sales from existing licensees. The Company believes its recent
entry into men's apparel comes at an opportune time as consumers look toward
brands they know and feel comfortable with. During 1998, the Company continued
its roll out of men's tailored clothing, launched Kenneth Cole men's sportswear
and dress
17
<PAGE>
shirts, and prepared for its early 1999 launch of loungewear. The Company
believes the synergies from its efforts to reinforce its brand identities
through greater marketing efforts, by itself and its licensees across all
product categories, will continue to propel licensee sales.
Consolidated gross profit as a percentage of net revenues increased to
43.3% in 1998 from 41.4% in 1997. The Company's wholesale gross profit,
excluding gross profit on sales to the Consumer Direct segment, increased 18.9%
to $51.6 million (34.1% of net Wholesale sales) in 1998 from $43.4 million
(32.1% of net Wholesale sales) in 1997. Wholesale gross profit as a percentage
of net wholesale revenues increased substantially as a result of increased sales
of men's footwear, which have the highest gross profit percentages within
Wholesale product categories, and better margins on sales of women's footwear,
compared to 1997 when the Company disposed of, at significant discounts, excess
Spring 1997 merchandise. The increase in sales of men's footwear was partially
attributable to improved fulfillment of customer orders due to the enhancement
of the Company's open stock inventory program combined with EDI replenishment.
Consumer Direct's gross profit percentage was 49.7% in 1998 compared with
52.1% in 1997. The decrease in Consumer Direct gross profit percentage was
attributable to a change in product mix, with a greater amount of merchandise
sourced from the Company's licensees, which carry lower initial markups than
footwear and handbags and the closing out of excess inventories relating to
catalog operations. However, the Consumer Direct gross profit percentage is
significantly higher than the Company's Wholesale gross profit percentage.
Accordingly, as sales of the Consumer Direct segment represent a larger
percentage of consolidated net sales, it increases the consolidated gross
profit percentage. Sales from the Consumer Direct segment were 30.0% of
consolidated net revenue in 1998 compared with 26.1% in 1997. Licensing revenue,
which has no associated cost of goods sold, increased as a percentage of net
revenues to 3.7% in 1998 from 3.2% in 1997.
Selling, general and administrative expenses, including shipping and
warehousing, increased 23.7% to $72.1 million (or 31.6% of net revenues) in 1998
from $58.3 million (or 30.5% of net revenues) in 1997. The increase was
primarily attributable to investment in organizational infrastructure to support
growth, marketing and public relations expenditures to build the Company's
brands, hiring of personnel and the expansion of the Company's consumer direct
operations. The increase as a percentage of net revenue is due to the expansion
of the Company's retail and outlet stores, which operate at a higher cost
structure than its Wholesale operations.
As a result of the foregoing, operating income increased 27.9% in 1998 to
$26.6 million (11.7% of net revenue) from $20.8 million (10.9% of net revenue)
in 1997.
Year Ended December 31,1997 Compared to Year Ended December 31,1996
Consolidated net revenues were $191.3 in 1997 compared to $151.8 million
in 1996, an increase of 26.0%. This improvement is principally due to increases
in each of the Company's business segments: wholesale, consumer direct and
licensing.
Wholesale net sales increased $25.7 million or 20.7% to $150.0 million in
1997 from $124.2 million in 1996. This increase reflects improved sales of men's
footwear and Unlisted women's footwear, partially offset by a reduction in
Kenneth Cole New York women's footwear, which experienced poor sell throughs of
its Spring 1997 merchandise. The Company believes that its advertising campaigns
and marketing efforts have been a significant factor leading to increased brand
awareness, continued growing consumer acceptance and the strengthening of the
Company's three distinct brands, Kenneth Cole New York, Kenneth Cole Reaction
and Unlisted, across all product classifications.
Net sales in the Company's Consumer Direct segment increased $14.7 million
or 41.6% to $50.0 million from $35.3 million in 1996. The increase was primarily
due to additional stores opened as well as increased sales at existing stores.
Of the total increase, $3.0 million was attributable to comparable store sales
increases and $11.7 million to new stores. The Company believes its retail
stores enable it to present a true cross section of the lifestyle offering that
consumers require.
Licensing revenue increased 68.6% to $6.0 million in 1997 from $3.6
million in 1996. This increase reflects the incremental revenues from the
introduction of new product licenses and an increase in sales from existing
licenses. Of this increase, approximately 29% or $0.7 million was due to
products introduced under new
18
<PAGE>
licenses during 1997. The Company believes its efforts to reinforce its brand
identities through greater marketing efforts across all product categories and
through its various business segments, have contributed to the increase in
licensee sales.
Gross profit as a percentage of net revenues decreased to 41.4% in 1997
from 42.8% in 1996. The Company's wholesale gross profit, excluding gross profit
on sales to the Consumer Direct segment, increased 7.7% to $43.4 million (32.1%
of net Wholesale sales) in 1997 from $40.3 million (35.7% of net Wholesale
sales) in 1996. Wholesale gross profit as a percentage of net wholesale revenue
decreased primarily due to lower than expected sell-throughs of Spring 1997
women's footwear, which resulted in excess inventories that were disposed of at
significant discounts during the second quarter of 1997. The decrease in
Wholesale gross profit was partially offset by an increase in Consumer Direct
sales, as gross profit percentages on Consumer Direct sales are higher than
gross profit percentages on Wholesale sales and Consumer Direct sales
represented a larger percentage of total revenue in 1997. Net sales from
consumer direct operations were 26.1% as a percentage of net revenue in 1997 as
compared to 23.3% in 1996. Licensing revenue, which has no associated cost of
goods sold, increased as a percentage of net revenues to 3.2% in 1997 compared
to 2.4% in 1996.
Selling, general and administrative expenses, including shipping and
warehousing, increased 31.5% to $58.3 million (or 30.5% of net revenues) in 1997
from $44.4 million (or 29.2% of net revenues) in 1996. The increase as a
percentage of net revenues was a result of continued expansion of the Company's
consumer direct operations, which operate at a higher cost structure than
wholesale. The overall increase was due to volume related expenses, including
hiring of new personnel, necessary to support the increase in revenue from all
business segments and incremental marketing and advertising expenses.
As a result of the foregoing, operating income increased to $20.8 million
in 1997 from $20.6 million in 1996.
Liquidity and Capital Resources
The Company's capital requirements are generated primarily from working
capital needs and the continued growth of the business. These include the
purchase of wholesale and retail inventories in anticipation of increased
wholesale sales and new store openings and capital expenditures related to the
expansion, renovation and construction of retail and outlet stores. The Company
relies upon internally generated cash flows from operations and borrowings under
its line of credit facility to finance its operations and growth. Cash flows may
vary from time to time as a result of seasonal requirements of inventory, the
timing of the receipt of merchandise from suppliers, the Company's open stock
inventory program which requires increased inventory levels and the level of
accounts receivable balances. At December 31, 1998, working capital was $56.6
million compared to $46.9 million at December 31, 1997.
Net cash provided by operating activities increased to $14.3 million in
1998 from $12.0 million in 1997. This increase was primarily attributable to
increased licensing revenues and higher earnings offset by increased inventory
levels required to support significant sales growth in men's footwear and for
the initial inventory requirements of the new retail and outlet stores.
Net cash used in investing activities was $5.8 million in 1998 compared to
$4.8 million in 1997. This increase reflects an increase in capital
expenditures.
Net cash used in financing activities was $3.5 million in 1998 compared to
$0.1 million in 1997. The changes in net cash used in financing activities
principally reflect the amounts expended in the Company's stock repurchase
program, partially offset by the proceeds from the exercise of stock options. As
of March 26, 1999, the Company had purchased 350,000 shares of the 500,000
shares authorized under its stock repurchase program.
The Company currently sells substantially all of its account receivables
to one factor without recourse. In circumstances where a customer's account
cannot be factored without recourse, the Company may take other measures to
reduce its credit exposure which could include requiring the customer to pay in
advance or to provide a letter of credit covering the sales price of the
merchandise ordered.
19
<PAGE>
The Company currently has a line of credit, as amended, under which up to
$25.0 million is available to finance working capital requirements and letters
of credit to finance the Company's inventory purchases. Borrowings available
under the line of credit are determined by a specified percentage of eligible
accounts receivable and inventories and bear interest at (i) the higher of The
Bank of New York's prime lending rate or the Federal Funds rate plus 0.5% at the
date of borrowing or (ii) a negotiated rate. In connection with the line of
credit, the Company has agreed to eliminate all the outstanding borrowings under
the facility for at least 30 consecutive days during each calendar year. In
addition, borrowings under the line of credit are secured by certain receivables
of the Company. Amounts available under the line of credit at December 31, 1998
were reduced by $1.6 million to $23.4 million for open letters of credit.
Capital expenditures were approximately $5.8 million, $4.8 million and
$4.9 million for 1998, 1997 and 1996, respectively. Expenditures on furniture,
fixtures and leasehold improvements for new retail store openings and expansions
were $4.9 million, $3.3 million and $3.0 million in 1998, 1997 and 1996,
respectively. The remaining expenditures were primarily for leasehold
improvements, information systems and equipment for the company's offices and
warehouse. During 1999, the Company anticipates opening or expanding
approximately 8 to 10 retail and outlet stores that will require aggregate
capital expenditures of approximately $4.0 million. The Company also expects to
spend approximately $2.5 million for the initial inventory requirements of these
new stores.
The Company also anticipates that it will require increased capital
expenditures to support its continued growth including an increase in its office
space and enhancements to its management information systems.
In December 1998, the Company entered into a 15-year lease which, over a
period of three to five years, will provide the Company with approximately
120,000 square feet of office space, enabling it to relocate its corporate
headquarters to a larger location in New York City and consolidate various
satellite office space. Currently, the timing of the turnover of space is
indeterminable and the Company does not expect to begin its phased relocation
until early in 2000. However, the Company expects to incur capital expenditures
of approximately $8 to $12 million over the next three to five years.
Year 2000
The Year 2000 problem is the result of computer programs being written
using two digits rather than four to define the applicable year. Certain
information technology systems and their associated software may recognize a
date using "00" as the year 1900 rather than the year 2000, which could result
in miscalculations, system failures or other computer errors. In addition, like
every other business, the Company is at risk from Year 2000 failures on the part
of its major business suppliers, distributors, licensees as well as potential
failures from public and private infrastructure service providers. System
failures resulting from the Year 2000 problem could adversely effect operations
and financial results in all of the Company's business segments. Failures may
cause loss of electric power or certain communication links, disruptions to
business operations including delayed deliveries from suppliers, disruptions to
the channels of distribution as well as disruptions to the Company's own
distribution center and retailing operations.
The Company believes that by replacing, rather than reprogramming, its
wholesale distribution and financial systems with newer technologically advanced
systems that offer greater functionality and enhanced reporting, the Year 2000
problem will be mitigated. However, if such replacements are not made, or are
not completed timely, the Year 2000 problem could have a material impact on the
operations of the Company.
The Company has adopted a five-phase Year 2000 program consisting of the
following: Phase I - identification of the components of the Company's systems,
equipment and suppliers that may be vulnerable to Year 2000 problems; Phase II -
assessment of items identified in Phase I; Phase III - remediation or
replacement of non-compliant systems; Phase IV - testing of systems and
components following replacement; and Phase V - developing contingency plans.
The Company has completed Phase I and Phase II.
Phase III - Remediation or replacement of non-compliant systems. This
phase involves creating plans, providing necessary resources and executing
remedial strategies. The Company's critical systems are being replaced with
newer advanced systems that are already Year 2000 compliant. The Company's
financial systems have been implemented, tested and "turned on" effective
January 1, 1999. The wholesale selling and distribution
20
<PAGE>
system is warranteed as Year 2000 compliant and is scheduled to be implemented
during the second quarter of 1999. All systems are expected to be reliably
functioning by July 1, 1999.
Phase IV - Testing of systems and components following replacement. This
phase includes testing functionality and system compliance. Of the Company's
information systems, the financial, warehousing and EDI systems currently
in-place have been tested and are Year 2000 compliant. The Company's retail
systems, which are run by a third party provider, have been warranteed as Year
2000 compliant and the Company's point-of-sale and credit card processing have
been successfully tested. The Company is working with its wholesale and
distribution systems software provider to program enhanced functionality
designed specifically for fashion footwear businesses. However, the existing
standard base system is Year 2000 compliant and is capable of running the
Company's business. The updated system is planned to be implemented during the
second quarter of 1999.
Phase V - Contingency planning. This phase addresses any remaining open
issues expected in 1999 and thereafter. Based upon its efforts to date, the
Company believes that all of its critical information technology and
non-information technology will remain up and running beyond January 1, 2000.
Accordingly, the Company does not currently anticipate that internal systems
failures will result in any material adverse effect to its operations or
financial condition. As a contingency plan for its wholesale and distribution
systems that are not yet implemented, the Company plans on implementing the
existing standard base system, which is certified Year 2000 compliant and has
already been installed and tested by the Company.
Third-Party Relationships. In addition to addressing the Company's
internal systems and equipment, the Company is communicating with significant
suppliers, vendors and other third parties with whom the Company has a
significant business relationship with, to determine their state of readiness
with respect to Year 2000. To date, the Company is not aware of any third-party
with a Year 2000 issue that would materially impact the Company's results of
operations. However, failure of significant suppliers, vendors or other third
parties to timely address and remedy Year 2000 problems or to develop and effect
appropriate contingency plans could have a material adverse effect on the
Company's operations. Various fallback plans are being considered, including the
use of electronic spreadsheets and manual work-arounds (e.g., written purchase
orders and bulk distributions). In addition, the Company believes that the
geographically disbursed nature of its business and its large supplier and
vendor base mitigates such potential adverse effects.
The Company does not expect the costs associated with its Year 2000
efforts to be material to the Company's financial condition or results of
operations. The total cost of purchasing and implementing the new information
systems, including addressing the Year 2000 problem is estimated at $2.0
million, of which approximately $600,000 has been expensed to date and $1.0
million spent on new software and hardware. The Company's cost estimates do not
include costs associated with addressing and resolving issues as a result of the
failure of third parties to become Year 2000 compliant. The costs of the Year
2000 project are being funded through both leasing arrangements and operating
cash flows.
The Company believes that it will be able to satisfy its cash requirements
for 1999, including requirements for its retail expansion, new corporate office
space and information systems improvements, primarily with cash flow from
operations, supplemented by borrowings under its line of credit.
Exchange Rates
The Company routinely enters into forward exchange contracts in anticipation of
future purchases of inventory denominated in foreign currencies, primarily the
Italian Lira and Spanish Peseta. At December 31, 1998, forward exchange
contracts totaling $6.6 million were outstanding with settlement dates ranging
from January 1999 through May 1999. Gains and losses on forward exchange
contracts are deferred and accounted for as part of the purchase price of
imported merchandise. At December 31, 1998, the unrealized loss on these forward
contracts is
21
<PAGE>
approximately $46,000. The Company expects to continue to routinely enter into
additional foreign exchange contracts throughout the year. While the Company
believes that its current procedures with respect to the reduction of risk
associated with currency exchange rate fluctuations is adequate, there can be no
assurance that such fluctuations will not have a material adverse effect on the
results of operations of the Company in the future.
On January 1, 1999, the Euro became the official single currency of the
European Economic and Monetary Union. As of this date, the conversion rates of
the national currencies of the union members were fixed irrevocably. During the
transition period between January 1999 and January 2002, parties may pay for
goods using either the Euro or the national currency. The Company believes
conversion to the Euro will not have a material effect on the Company's
financial condition or results of operation.
Inventory purchases from contract manufacturers in the Far East and Brazil
are denominated in United States dollars and the recent devaluation of many of
these currencies against the United States dollar has not had any material
adverse impact on the Company. However, future purchase prices for the Company's
products may be impacted by fluctuations in the exchange rate between the United
States dollar and the local currencies of the contract manufacturer, which may
effect the Company's cost of goods in the future. The Company does not believe
the potential effects of such fluctuations would have a material adverse affect
on the Company.
Effects of Inflation
The Company does not believe that the relatively moderate rates of
inflation experienced over the last few years in the United States, where it
primarily competes, have had a significant effect on revenues or profitability.
Important Factors Relating to Forward Looking Statements
The Private Securities Litigation Reform Act of 1995 (the "Act") provides
a safe harbor for forward-looking statements made by or on behalf of the
Company. The Company and its representatives may from time to time make written
or oral statements that are "forward-looking," including statements contained in
this report and other filings with the Securities and Exchange Commission and in
reports to the Company's shareholders. All statements that express expectations
and projections with respect to future matters, including the launching or
prospective development of new business initiatives, "Year 2000" remediation
efforts, future licensee sales growth, and the introduction of the Euro are
forward-looking statements within the meaning of the Act. These statements are
made on the basis of management's views and assumptions, as of the time the
statements are made, regarding future events and business performance. There can
be no assurance, however, that management's expectations will necessarily come
to pass. A number of factors affecting the Company's business and operations
could cause actual results to differ materially from those contemplated by the
forward-looking statements. Those factors include, but are not limited to,
demand and competition for the Company's products, changes in consumer
preferences on fashion trends, delays in anticipated store openings, and changes
in the Company's relationship with its suppliers and other resources. This list
of factors that may affect future performance and the accuracy of
forward-looking statements is illustrative, but by no means exhaustive.
Accordingly, readers of this Annual Report should consider these facts in
evaluating the information and are cautioned not to place undue reliance on the
forward-looking statements contained herein.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
The Company does not believe it has a material exposure to market risk.
The Company is primarily exposed to currency exchange-rate risks with respect to
its inventory transactions denominated in Italian Lira and Spanish Pesetas, both
of which have been converted to the Euro effective January 1, 1999. Business
activities in various currencies expose the company to the risk that the
eventual net dollar cash flows from transactions with foreign suppliers
denominated in foreign currencies may be adversely affected by changes in
currency rates. The Company manages these risks by utilizing foreign exchange
contracts. The Company does not enter into foreign currency transactions for
speculative purposes. The Company's earnings may be affected by changes in
short-term interest rates as a result of borrowings under its line of credit
facility. A two percent increase in interest rates affecting the company's
credit facility would not have had a material effect on the Company's 1998
and 1997 net income.
Item 8. Financial Statements and Supplementary Data
22
<PAGE>
See page F-1 for a listing of the consolidated financial statements
submitted as part of this report.
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure
None.
23
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
Except for the information regarding directors and executive officers of
the registrant, which is included in Part I, the information required by this
item will be contained in the Company's Proxy Statement for its Annual
Shareholders Meeting to be held May 27, 1999 to be filed with the Securities and
Exchange Commission within 120 days after December 31, 1998 and is incorporated
herein by reference in response to this item.
Item 11. Executive Compensation
The information required by this item will be contained in the Company's
Proxy Statement for its Annual Shareholders Meeting to be held May 27, 1999 to
be filed with the Securities and Exchange Commission within 120 days after
December 31, 1998 and is incorporated herein by reference in response to this
item.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The information required by this item will be contained in the Company's
Proxy Statement for its Annual Shareholders Meeting to be held May 27, 1999 to
be filed with the Securities and Exchange Commission within 120 days after
December 31, 1998 and is incorporated herein by reference in response to this
item.
Item 13. Certain Relationships and Related Transactions
The information required by this item will be contained in the Company's
Proxy Statement for its Annual Shareholders Meeting to be held May 27, 1999 to
be filed with the Securities and Exchange Commission within 120 days after
December 31, 1998 and is incorporated herein by reference in response to this
item.
24
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a)(1) See page F-1 for a listing of consolidated financial statements
submitted as part of this report.
(a)(2) Schedule II - Valuation and Qualifying Accounts
All other schedules, for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions, are shown in the financial
statements or are inapplicable and therefore have been omitted.
(a)(3) The following exhibits are included in this report.
Exhibit
No. Description
- ------- -----------
3.01 --Restated Certificate of Incorporation of Kenneth Cole Productions,
Inc.; Certificate of Merger of Cole Fifth Avenue, Inc. into Kenneth
Cole Productions, Inc.; Certificate of Merger of Cole Productions,
Inc. into Kenneth Cole Productions, Inc.; Certificate of Merger of
Cole Sunset, Inc. into Kenneth Cole Productions, Inc.; Certificate of
Merger of Cole Union Street, Inc. into Kenneth Cole Productions,
Inc.; Certificate of Merger of Cole West, Inc. into Kenneth Cole
Productions, Inc.; Certificate of Merger of Kenneth Cole Woodbury,
Inc. into Kenneth Cole Productions, Inc.; Certificate of Merger of
Kenneth Cole Leather Goods, Inc. into Kenneth Cole Productions, Inc.;
Certificate of Merger of Unlisted into Kenneth Cole Productions, Inc.
(Incorporated by reference to Exhibit 3.01 to the Company's
Registration Statement on Form S-1, Registration No. 33-77636).
3.02 --By-laws. (Incorporated by reference to Exhibit 3.02 to the
Company's Registration Statement on Form S-1, Registration No.
33-77636).
4.01 --Specimen of Class A Common Stock Certificate. (Incorporated by
reference to Exhibit 4.01 to the Company's Registration Statement on
Form S-1, Registration No. 33-77636).
10.01 --Tax Matters Agreement, dated as of June 1, 1994, among Kenneth Cole
Productions, Inc., Kenneth D. Cole, Paul Blum and Stanley A. Mayer.
(Incorporated by reference to Exhibit 10.01 to the Company's
Registration Statement on Form S-1, Registration No. 33-77636).
10.02 --Term Loan Agreement, dated as of May 26, 1994, by and among Kenneth
Cole Productions, Inc., Kenneth Cole Leather Goods, Inc., Unlisted,
Inc., Cole West, Inc., Kenneth Cole Financial Services, Inc., Kenneth
Cole Woodbury, Inc., Cole Fifth Avenue, Inc., Cole Union Street, Inc.
and The Bank of New York; Promissory Notes, dated May 26, 1994,
issued by each of Kenneth Cole Leather Goods, Inc., Unlisted, Inc.,
Cole West, Inc., Kenneth Cole Financial Services, Inc., Kenneth Cole
Woodbury, Inc., Cole Fifth Avenue, Inc., Cole Union Street, Inc. to
The Bank of New York; Shareholder Guaranty by and between Kenneth D.
Cole and The Bank of New York, dated as of May 26, 1994;
Subordination Agreement by and among Kenneth D. Cole, Kenneth Cole
Productions, Inc., Kenneth Cole Leather Goods, Inc., Unlisted, Inc.,
Cole West, Inc., Kenneth Cole Financial Services, Inc., Kenneth Cole
Woodbury, Inc., Cole Fifth Avenue, Inc., Cole Union Street, Inc. and
The Bank of New York, dated as of April 13, 1994; Reinvestment
Agreement by and among Kenneth D. Cole, Kenneth Cole Productions,
Inc., Unlisted, Inc., Cole West, Inc., Kenneth Cole Financial
Services, Inc., Kenneth Cole Woodbury, Inc., Cole Fifth Avenue, Inc.,
Cole Union Street, Inc. and The Bank of New York, dated as of May 26,
1994; Amendment No. 1 to the Term Loan Agreement and the Reinvestment
Agreement by and among Kenneth D. Cole, Kenneth Cole Productions,
Inc., Cole West, Inc., Kenneth Cole Woodbury, Inc., Cole Fifth
Avenue, Inc., Cole Union Street, Inc., Kenneth Cole Financial
Services, Inc. and The Bank of New York, dated as of May 31, 1994.
(Incorporated by reference to Exhibit 10.02 to the Company's
Registration Statement on Form S-1, Registration No. 33-77636).
10.03 --Line of Credit Letter, dated January 13, 1994, from The Bank of New
York to Kenneth Cole Productions, Inc., Kenneth Cole Leather Goods,
Inc. and Unlisted, Inc.; $7,500,000 Promissory Note, dated February
25
<PAGE>
1, 1994 by Kenneth Cole Productions, Inc., Kenneth Cole Leather
Goods, Inc. and Unlisted, Inc. issued to The Bank of New York; Letter
Agreement, dated December 16, 1993, between The Bank of New York and
Kenneth Cole Productions, Inc., Unlisted, Inc., Kenneth Cole Leather
Goods, Inc., Cole Productions, Inc., Cole West, Inc., Kenneth Cole
Financial Services, Inc., Cole Woodbury, Inc., Cole Sunset, Inc. and
Cole Fifth Avenue, Inc.; General Guarantees, dated December 16, 1993,
in favor of The Bank of New York by Kenneth Cole Leather Goods, Inc.
for Unlisted, Inc., by Kenneth Cole Leather Goods, Inc. for Kenneth
Cole Productions, Inc., by Unlisted, Inc. for Kenneth Cole
Productions, Inc., by Unlisted, Inc. for Kenneth Cole Leather Goods,
Inc., by Kenneth Cole Productions, Inc. for Kenneth Cole Leather
Goods, Inc., and by Kenneth Cole Productions, Inc. for Unlisted,
Inc.; General Loan and Security Agreements, dated December 16, 1993,
between The Bank of New York and each of Kenneth Cole Productions,
Inc., Kenneth Cole Leather Goods, Inc. and Unlisted, Inc.; and
Personal Guarantees of Mr. Kenneth D. Cole, dated December 16, 1993,
in favor of The Bank of New York for Kenneth Cole Productions, Inc.,
Unlisted, Inc. and Kenneth Cole Leather Goods, Inc. (Incorporated by
reference to Exhibit 10.03 to the Company's Registration Statement on
Form S-1, Registration No. 33-77636).
Line of Credit Letter, dated December 9, 1994 from The Bank of New
York to Kenneth Cole Productions, Inc.; $7,500 Promissory Note, dated
December 15, 1994 by Kenneth Cole Productions, Inc. issued to The
Bank of New York; Letter of Termination of Personal Guarantees of Mr.
Kenneth D. Cole, dated December 8, 1994, in favor of The Bank of New
York for Kenneth Cole Productions, Inc., Unlisted, Inc. and Kenneth
Cole Leather Goods, Inc. (Incorporated by reference to Exhibit 10.03
to the Company's 1994 Form 10-K).
10.03A $10,000 Promissory Note, dated July 31, 1995 by Kenneth Cole
Productions, Inc. issued to The Bank of New York. (Previously filed
as Exhibit 10.03A to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1996 and incorporated herein by
reference).
*10.04 --Kenneth Cole Productions, Inc. 1994 Stock Option Plan.
(Incorporated by reference to Exhibit 10.04 to the Company's
Registration Statement on Form S-1, Registration No. 33-77636).
*10.05 --Employment Agreement, dated as of April 30, 1994, between Kenneth
Cole Productions, Inc. and Kenneth D. Cole. (Incorporated by
reference to Exhibit 10.05 to the Company's Registration Statement on
Form S-1, Registration No. 33-77636).
*10.06 --Employment Agreement, dated as of April 30, 1994, between Kenneth
Cole Productions, Inc. and Paul Blum. (Incorporated by reference to
Exhibit 10.06 to the Company's Registration Statement on Form S-1,
Registration No. 33-77636).
*10.07 --Employment Agreement, dated as of April 30, 1994, between Kenneth
Cole Productions, Inc. and Stanley A. Mayer; Stock Option Agreement
dated as of March 31, 1994 between Kenneth Cole Productions, Inc. and
Stanley A. Mayer. (Incorporated by reference to Exhibit 10.07 to the
Company's Registration Statement on Form S-1, Registration No.
33-77636).
Stock Option Agreement dated as of June 1, 1994, between Kenneth Cole
Productions, Inc. and Stanley A. Mayer; Stock Option Agreement dated
as of July 7, 1994, between Kenneth Cole Productions, Inc. and
Stanley A. Mayer (Incorporated by reference to Exhibit 10.07 to the
Company's 1994 Form 10-K).
10.08 --Collective Bargaining Agreement by and between the New York
Industrial Council of the National Fashion Accessories Association,
Inc. and Leather Goods, Plastics, Handbags and Novelty Workers'
Union, Local 1, dated as of April 25, 1987; Memorandum of Agreement
by and between the New York Industrial Council of the National
Fashion Accessories Association, Inc. and Leather Goods, Plastics,
Handbags and Novelty Workers' Union, Local 1, Division of Local
342-50 United Food and Commercial Workers Union, dated as of June 16,
1993. (Incorporated by reference to Exhibit 10.08 to the Company's
Registration Statement on Form S-1, Registration No. 33-77636).
10.09 Memorandum of Agreement between the New York Industrial Council of
the National Fashion Accessories Association Inc. and Local 1 Leather
Goods, Plastics, Handbags, and Novelty Workers Union, Division of
Local 342-50 United Food and Commercial Workers Union (Previously
filed as Exhibit 10.1 to the Registrant's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1996 and incorporated
herein by reference).
26
<PAGE>
*10.10 Employment Agreement between Kenneth Cole Productions, Inc., and Paul
Blum. (Previously filed as Exhibit 10.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 1996 and
incorporated herein by reference).
10.11 Sublease Agreement, dated June 17, 1996, between Kenneth Cole
Productions, Inc. and Liz Claiborne Accessories, Inc. (Incorporated
by reference to Exhibit 10.11 to the Company's 1996 Form 10-K).
*10.12 Amended and Restated Kenneth Cole Productions, Inc. 1994 Stock Option
Plan (Previously filed as an Exhibit to the Registrant's Proxy
Statement filed on April 22, 1997 and incorporated herein by
reference).
*10.13 Employment Agreement between Kenneth Cole Productions, Inc. and Susan
Hudson (Previously filed as an Exhibit to the Company's 1997 Form
10-K).
+10.14 Lease Agreement, dated December 17, 1998, between Kenneth Cole
Productions, Inc. and SAAR Company, LLC.
+21.01 --List of Subsidiaries
+23.01 Consent of Ernst & Young LLP
+27.01 Financial Data Schedules
- ----------------------------
* Management contract or compensatory plan or arrangement required to be
identified pursuant to Item 14(a) of this report.
+ Filed herewith.
(b) Reports on Form 8-K
None.
(b) See (a)(3) above for a listing of the exhibits included as a part of this
report.
27
<PAGE>
Kenneth Cole Productions, Inc. and Subsidiaries
Index to Consolidated Financial Statements
Page
----
Report of Independent Auditors............................................. F-2
Consolidated Balance Sheets as of December 31, 1998 and 1997............... F-3
Consolidated Statements of Income for the years ended
December 31, 1998, 1997 and 1996........................................ F-5
Consolidated Statements of Changes in Shareholders' Equity
for the years ended December 31, 1998, 1997 and 1996.................... F-6
Consolidated Statements of Cash Flows for the years ended
December 31, 1998, 1997 and 1996........................................ F-7
Notes to Consolidated Financial Statements................................. F-8
F-1
<PAGE>
Report of Independent Auditors
Board of Directors and Shareholders
Kenneth Cole Productions, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheets of Kenneth
Cole Productions, Inc. and subsidiaries as of December 31, 1998 and 1997, and
the related consolidated statements of income, changes in shareholders' equity,
and cash flows for each of the three years in the period ended December 31,
1998. Our audits also included the financial statement schedule listed at Item
14(a). These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Kenneth Cole
Productions, Inc. and subsidiaries at December 31, 1998 and 1997, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended December 31, 1998, in conformity with generally
accepted accounting principles.
New York, New York ERNST & YOUNG LLP
February 25, 1999
F-2
<PAGE>
Kenneth Cole Productions, Inc. and Subsidiaries
Consolidated Balance Sheets
<TABLE>
<CAPTION>
December 31,
1998 1997
-------------------------
<S> <C> <C>
Assets
Current assets:
Cash $13,824,000 $ 8,803,000
Due from factors 19,552,000 23,292,000
Accounts receivable, less allowance for doubtful accounts
of $125,000 in 1998, and $80,000 in 1997 4,874,000 3,864,000
Inventories 32,957,000 23,365,000
Prepaid expenses and other current assets 1,735,000 1,420,000
Deferred taxes 718,000 1,135,000
-------------------------
Total current assets 73,660,000 61,879,000
-------------------------
Property and equipment--at cost, less accumulated
depreciation and amortization 16,171,000 12,211,000
Other assets:
Deposits and deferred taxes 3,106,000 1,489,000
Deferred compensation plan assets 3,743,000 1,949,000
-------------------------
Total other assets 6,849,000 3,438,000
-------------------------
Total assets $96,680,000 $77,528,000
=========================
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
Kenneth Cole Productions, Inc. and Subsidiaries
Consolidated Balance Sheets (continued)
<TABLE>
<CAPTION>
December 31,
1998 1997
----------------------------
<S> <C> <C>
Liabilities and shareholders' equity
Current liabilities:
Accounts payable $ 10,644,000 $ 9,837,000
Accrued expenses and other current liabilities 4,467,000 3,399,000
Current obligations under capital lease 167,000
Income taxes payable 1,738,000 1,694,000
----------------------------
Total current liabilities 17,016,000 14,930,000
Accrued rent 1,472,000 909,000
Deferred compensation 3,743,000 1,949,000
Obligations under capital lease 760,000
Commitments and contingencies
Shareholders' equity:
Preferred stock, par value $1.00, 1,000,000
shares authorized, none outstanding
Class A Common Stock, par value $.01, 20,000,000 shares
authorized, 7,609,697 and 7,410,160 issued in 1998 and 1997 76,000 74,000
Class B Convertible Common Stock, par value $.01,
6,000,000 shares authorized, 5,785,398
outstanding in 1998 and 1997 58,000 58,000
Additional paid-in capital 22,284,000 19,684,000
Cumulative other comprehensive income 74,000 90,000
Retained earnings 56,165,000 39,834,000
----------------------------
78,657,000 59,740,000
Class A Common Stock in treasury, at cost,
350,000 shares (4,968,000)
----------------------------
Total shareholders' equity 73,689,000 59,740,000
----------------------------
Total liabilities and shareholders' equity $ 96,680,000 $ 77,528,000
============================
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE>
Kenneth Cole Productions, Inc. and Subsidiaries
Consolidated Statements of Income
<TABLE>
<CAPTION>
Year ended December 31,
1998 1997 1996
-----------------------------------------------------------
<S> <C> <C> <C>
Net sales $ 219,781,000 $ 185,278,000 $ 148,258,000
Licensing revenue 8,357,000 6,028,000 3,575,000
-----------------------------------------------------------
Net revenue 228,138,000 191,306,000 151,833,000
Cost of goods sold 129,403,000 112,183,000 86,919,000
-----------------------------------------------------------
Gross profit 98,735,000 79,123,000 64,914,000
Selling, general and administrative expenses 72,145,000 58,330,000 44,354,000
-----------------------------------------------------------
Operating income 26,590,000 20,793,000 20,560,000
Interest income (expense), net 404,000 (202,000) (22,000)
-----------------------------------------------------------
Income before provision for income taxes 26,994,000 20,591,000 20,538,000
Provision for income taxes 10,663,000 8,189,000 8,251,000
===========================================================
Net income $ 16,331,000 $ 12,402,000 $ 12,287,000
===========================================================
Earnings per share:
Basic $1.24 $.94 $.94
Diluted $1.20 $.91 $.90
Shares used to compute earnings per share:
Basic 13,222,000 13,162,000 13,109,000
Diluted 13,637,000 13,605,000 13,578,000
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE>
Kenneth Cole Productions, Inc. and Subsidiaries
Consolidated Statements of Changes in Shareholders' Equity
<TABLE>
<CAPTION>
Class A Common Stock Class B Common Stock
-------------------- -------------------- Accumulated
Additional Other
Number Number Paid-In Comprehensive Retained
of Shares Amount of Shares Amount Capital Income Earnings
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995 7,299,382 $73,000 5,785,398 $ 58,000 $ 18,510,000 $ 15,145,000
Exercise of stock
options and related
tax benefits 53,797 1,000 594,000
Net income 12,287,000
Amortization of deferred
compensation
----------------------------------------------------------------------------------------------
Balance at December 31, 1996 7,353,179 74,000 5,785,398 58,000 19,104,000 27,432,000
Net income 12,402,000
Foreign Currency
Translation adjustment $90,000
Comprehensive income
Exercise of stock
options and related
tax benefits 56,981 580,000
Amortization of deferred
compensation
----------------------------------------------------------------------------------------------
Balance at December 31, 1997 7,410,160 74,000 5,785,398 58,000 19,684,000 90,000 39,834,000
Net Income 16,331,000
Foreign Currency
Translation adjustment (16,000)
Comprehensive income
Exercise of stock
options and related
tax benefits 199,537 2,000 2,600,000
Purchase of 350,000
shares of Class A
common stock
----------------------------------------------------------------------------------------------
Balance at December 31, 1998 7,609,697 $76,000 5,785,398 $58,000 $22,284,000 $74,000 $56,165,000
==============================================================================================
<CAPTION>
Treasury Stock
--------------------
Number Deferred
of Shares Amount Compensation Total
--------------------------------------------------
<S> <C> <C> <C> <C>
Balance at December 31, 1995 $ (297,000) $ 33,489,000
Exercise of stock
options and related
tax benefits 595,000
Net income 12,287,000
Amortization of deferred
compensation 228,000 228,000
--------------------------------------------------
Balance at December 31, 1996 (69,000) 46,599,000
Net income 12,402,000
Foreign Currency
Translation adjustment 90,000
--------------
Comprehensive income 12,492,000
Exercise of stock
options and related
tax benefits 580,000
Amortization of deferred
compensation 69,000 69,000
--------------------------------------------------
Balance at December 31, 1997 - 59,740,000
Net Income 16,331,000
Foreign Currency
Translation adjustment (16,000)
--------------
Comprehensive income 16,315,000
Exercise of stock
options and related
tax benefits 2,602,000
Purchase of 350,000
shares of Class A
common stock (350,000) $(4,968,000) (4,968,000)
--------------------------------------------------
Balance at December 31, 1998 (350,000) $(4,968,000) - $73,689,000
==================================================
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
Kenneth Cole Productions, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
1998 1997 1996
----------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities
Net income $ 16,331,000 $ 12,402,000 $ 12,287,000
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization 2,791,000 1,953,000 1,109,000
Unrealized gain on deferred compensation plan (502,000) (153,000)
Provision for doubtful accounts 197,000 157,000 35,000
Amortization of deferred compensation 69,000 228,000
Abandonment of leasehold improvements and equipment 106,000
(Benefit) provision for deferred taxes (373,000) 152,000 36,000
Changes in operating assets and liabilities:
Decrease (increase) in due from factors 3,740,000 (5,316,000) (4,078,000)
Increase in accounts receivable (1,207,000) (682,000) (1,058,000)
(Increase) decrease in inventories (9,592,000) 5,900,000 (12,904,000)
Increase in prepaid expenses and
other current assets (315,000) (419,000) (92,000)
Increase in deposits and deferred compensation
assets (2,119,000) (1,856,000) (786,000)
Increase in income taxes payable 1,140,000 632,000 1,497,000
Increase (decrease) in accounts payable 807,000 (2,901,000) 5,973,000
Increase in accrued expenses and
other current liabilities 1,068,000 934,000 485,000
Increase in other non-current liabilities 2,357,000 1,141,000 747,000
----------------------------------------------
Net cash provided by operating activities 14,323,000 12,013,000 3,585,000
Cash flows from investing activities
Acquisition of property and equipment, net (5,784,000) (4,832,000) (4,894,000)
----------------------------------------------
Net cash used in investing activities (5,784,000) (4,832,000) (4,894,000)
Cash flows from financing activities
(Repayment) proceeds of revolving line of credit, net (440,000) 440,000
Proceeds from exercise of stock options 1,506,000 395,000 345,000
Repayment of long-term debt (49,000) (54,000)
Principle payments of capital lease obligations (40,000)
Purchase of treasury stock (4,968,000)
----------------------------------------------
Net cash (used in) provided by financing activities (3,502,000) (94,000) 731,000
Effect of exchange rate changes on cash (16,000) 90,000
----------------------------------------------
Net increase (decrease) in cash 5,021,000 7,177,000 (578,000)
Cash, beginning of year 8,803,000 1,626,000 2,204,000
----------------------------------------------
Cash, end of year $ 13,824,000 $ 8,803,000 $ 1,626,000
==============================================
Supplemental disclosures of cash flow information
Cash paid during the period for:
Interest $ 29,000 $ 323,000 $ 119,000
Income taxes $ 9,901,000 $ 7,396,000 $ 5,804,000
</TABLE>
See accompanying notes to consolidated financial statements.
F-7
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements
December 31, 1998
Note A - Summary of Significant Accounting Policies
1. Description of business
Kenneth Cole Productions, Inc. and its subsidiaries (the "Company")
designs, sources and markets a broad range of quality footwear and handbags, and
through license agreements, designs and markets men's and women's apparel and
accessories under its Kenneth Cole New York, Kenneth Cole Reaction and Unlisted
brands for the fashion conscious consumer. The Company was incorporated in
September 1982 and completed an initial public offering on June 9, 1994. The
Company markets its products for sale to more than 3,500 department stores and
specialty store locations in the United States and in several foreign countries,
through its retail and outlet store base, and its interactive website. The
Company also distributes consumer catalogs that feature a variety of Kenneth
Cole New York and Kenneth Cole Reaction branded products.
2. Principles of consolidation
The consolidated financial statements include the accounts of Kenneth Cole
Productions, Inc. and its wholly owned subsidiaries. All material intercompany
transactions and balances have been eliminated in consolidation.
3. Use of estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements, as well as the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
4. Cash and cash equivalents
The Company considers all highly liquid investments with a maturity of
three months or less at the time of purchase to be cash equivalents.
5. Inventories
Inventories, which consist of finished goods, are stated at the lower of
cost or market. Cost is determined by the first-in, first-out method.
F-8
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note A - Summary of Significant Accounting Policies (continued)
6. Property and equipment
Property and equipment are stated at cost less accumulated depreciation
and amortization. Depreciation and amortization, which includes the amortization
of assets recorded under capital leases, are computed using the straight-line
method over estimated useful lives ranging from three to seven years. Leasehold
improvements are amortized by the straight-line method over the term of the
related lease or the estimated useful life, whichever is less.
The Company reviews long-lived assets for possible impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable. The Company has determined that no provision is
necessary for the impairment of long-lived assets at December 31, 1998.
7. Income taxes
The Company accounts for income taxes using the liability method. Under
this method, deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes.
8. Revenue recognition
Wholesale revenues are recognized at the time merchandise is shipped to
customers. Retail store revenues are recognized at the time of sale.
9. Licensing revenue
The Company has entered into various trade name license agreements that
provide revenues based on minimum royalties and additional revenues based on
percentage of defined sales. Minimum royalty revenue is recognized on a
straight-line basis over each period, as defined, in each license agreement.
Royalties exceeding the defined minimum amounts are recognized as income during
the period corresponding to the licensee's sales.
10. Advertising costs
The Company incurred advertising costs, including certain in-house
marketing expenses, of $7.8 million, $6.8 million and $5.0 million for 1998,
1997 and 1996, respectively. The Company records advertising expense concurrent
with the first time the advertising takes place.
F-9
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note A - Summary of Significant Accounting Policies (continued)
11. Stock-based compensation
The Company measures compensation expense for its stock-based compensation
plans using the intrinsic value method prescribed in Accounting Principles Board
Opinion No. 25 "Accounting for Stock Issued to Employees" ("APB No. 25") and
related Interpretations. Statement of Financial Accounting Standards No. 123
"Accounting for Stock-Based Compensation" ("SFAS 123") requires companies
electing to continue using the intrinsic value method, under APB No. 25 to
disclose the pro forma effects or net income and earnings per share had the fair
value of options been expensed (see Note H).
12. Recent accounting pronouncements
Effective January 1, 1998, the Company adopted the Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 131,
Disclosures about Segments of an Enterprise and Related Information ("SFAS
131"). Statement 131 establishes standards for the way that public business
enterprises report information about operating segments in annual financial
statements and requires that those enterprises report selected information about
operating segments in interim financial reports. SFAS 131 also establishes
standards for related disclosures about products and services, geographic areas,
and major customers. The adoption of SFAS 131 did not affect results of
operations or financial position, but did affect the disclosure of segment
information (see Note E).
In June 1988, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and for Hedging Activities" ("SFAS 133") which the Company expects to adopt
January 1, 2000. The new Statement requires all derivatives to be recorded in
the balance sheet at fair value and establishes special accounting for three
different types of hedges. The Company, based on its current hedging activities,
does not expect the adoption of SFAS 133 to have a material effect in the
earnings and financial position of the Company.
13. Reclassifications
Certain amounts included in the 1997 and 1996 financial statements have
been reclassified to conform with the year-end 1998 presentation.
F-10
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note B - Due from Factors and Line of Credit Facility
The Company sells substantially all of its accounts receivable to a
factor, without recourse, subject to credit limitations established by the
factor for each individual account. Certain accounts receivable in excess of
established limits are factored with recourse. Included in amounts due from
factors at December 31, 1998 and 1997 are accounts receivable, subject to
recourse, totaling approximately $526,000 and $674,000, respectively. The
agreements with the factors provide for payment of a service fee on receivables
sold.
At December 31, 1998 and 1997, the balance due from factors, which
includes chargebacks due from customers, is net of a reserve for sales
allowances, returns, discounts, and other deductions of approximately $3,300,000
and $2,900,000, respectively.
The Company has entered into a Line of Credit Facility (the "Facility")
that, as amended, allows for uncommitted borrowings, letter of credits and
banker's acceptances subject to individual maximums and in the aggregate, an
amount not to exceed the lesser of $25,000,000 or a "Borrowing Base." The
Borrowing Base is calculated on a specified percentage of eligible amounts due
under factoring arrangements, eligible non-factored accounts receivable, and
eligible inventory. Borrowings under the revolving loan portion of the Facility
("Advances") are due on demand. The Company may pay down and re-borrow at will
under the Facility. Advances bear interest at the Alternate Base Rate (defined
as the higher of the Prime Rate or the Federal Funds in effect at borrowing date
plus 1/2 of 1%) or the Note Rate (which will be agreed upon between the lender
and the Company). There were no outstanding advances under this agreement at
December 31, 1998 or 1997. Amounts available under the Facility at December 31,
1998 were reduced by $1,569,000 to $23,431,000 for open letters of credit.
In connection with the line of credit, the Company has agreed to eliminate
all the outstanding advances under the Facility for at least 30 consecutive days
during each calendar year. In addition, borrowings under the line of credit are
secured by certain assets of the Company.
F-11
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note C - Property and Equipment
Property and equipment consist of the following:
December 31,
1998 1997
-------------------------
Property and equipment--at cost:
Furniture and fixtures $ 7,817,000 $ 5,513,000
Machinery and equipment 4,731,000 3,862,000
Leasehold improvements 10,828,000 8,217,000
Leased equipment under capital lease 967,000
-------------------------
24,343,000 17,592,000
Less accumulated depreciation and amortization 8,172,000 5,381,000
-------------------------
Net property and equipment $16,171,000 $12,211,000
=========================
Note D - Accrued Expenses and Other Liabilities
Accrued expenses and other current liabilities consist of the following:
December 31,
1998 1997
-------------------------------
Rent $ 315,000 $ 438,000
Compensation 2,792,000 1,822,000
Customer credits 414,000 244,000
Other 946,000 895,000
-------------------------------
$4,467,000 $3,399,000
===============================
F-12
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note E - Segment Reporting
Kenneth Cole Productions, Inc. has three reportable segments: Wholesale,
Consumer Direct, and Licensing. The Wholesale segment designs and sources a
broad range of fashion footwear, handbags and accessories and markets its
products for sale to more than 3,500 department and specialty store locations
and to the Company's Consumer Direct segment. The Consumer Direct segment
markets the broad selection of the Company's branded products, including
licensee products, for sale directly to the consumer through its own channels of
distribution, which include full price retail stores, outlet stores, e-commerce
(at website address www.kennethcole.com) and catalogs. The Licensing segment,
through third party licensee agreements, has evolved the Company from a footwear
resource to a diverse lifestyle brand competing effectively in about 30
categories of apparel and accessories for both men and women. The Company
maintains control over quality and image and allows licensees to sell to the
same channels of distribution as those of the Company's Wholesale segment. The
Company earns royalties on the licensee's sales of branded product.
The Company evaluates performance and allocates resources based on profit
or loss from each segment. The Wholesale segment is evaluated on income from
operations before income taxes. The Consumer Direct segment is evaluated on
profit or loss from operations before unallocated corporate overhead and income
taxes. The Licensing segment is evaluated based on royalties earned and pretax
segment profit. The accounting policies of the reportable segments are the same
as those described in the summary of significant accounting policies.
Intersegment sales between the Wholesale and Consumer Direct segments include a
markup which is eliminated in consolidation.
The Company's reportable segments are business units that offer products
to overlapping consumers through different channels of distribution. Each
segment is managed separately and planning, implementation and results are
reviewed internally by the executive management committee.
F-13
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Financial information of the Company's reportable segments is as follows:
<TABLE>
<CAPTION>
(in thousands)
Consumer
Wholesale Direct Licensing Totals
---------------------------------------------------------------
<S> <C> <C> <C> <C>
Year Ended December 31, 1998
Revenues from external customers $151,402 $68,379 $8,357 $228,138
Intersegment revenues 18,679 18,679
Interest income, net 404 404
Depreciation expense 1,072 1,715 4 2,791
Segment income before provision
for income taxes 21,815 7,326 6,002 35,143
Segment assets 78,200 26,798 1,690 106,688
Expenditures for long-lived assets 836 4,923 25 5,784
Year Ended December 31, 1997
Revenues from external customers $135,296 $49,982 $6,028 $191,306
Intersegment revenues 14,682 14,682
Interest expense, net (202) (202)
Depreciation expense 791 1,161 1 1,953
Segment income before provision
for income taxes 15,682 6,929 4,278 26,889
Segment assets 65,324 19,309 1,253 85,886
Expenditures for long-lived assets 1,479 3,346 7 4,832
Year Ended December 31, 1996
Revenues from external customers $112,942 $35,316 $3,575 $151,833
Intersegment revenues 11,291 11,291
Interest expense, net (22) (22)
Depreciation expense 363 746 1,109
Segment income before provision
for income taxes 18,205 5,017 2,108 25,330
Segment assets 56,425 15,282 803 72,510
Expenditures for long-lived assets 1,874 3,020 4,894
</TABLE>
F-14
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
The reconciliation of the Company's reportable segment revenues, profit
and loss, and assets are as follows:
<TABLE>
<CAPTION>
(in thousands)
1998 1997 1996
-----------------------------------
<S> <C> <C> <C>
Revenues
Revenues for reportable segments $ 228,138 $ 191,306 $ 151,833
Intersegment revenues for reportable segments 18,679 14,682 11,291
Elimination of intersegment revenues (18,679) (14,682) (11,291)
--------- --------- ---------
Total consolidated revenues $ 228,138 $ 191,306 $ 151,833
========= ========= =========
Income
Total profit for reportable segments $ 35,143 $ 26,889 $ 25,330
Elimination of intersegment profit (4,914) (3,956) (3,013)
Unallocated corporate overhead (3,235) (2,342) (1,779)
--------- --------- ---------
Total income before income taxes $ 26,994 $ 20,591 $ 20,538
========= ========= =========
Assets
Total assets for reportable segments $ 106,688 $ 85,886 $ 72,510
Elimination of intercompany receivables (8,687) (7,105) (6,166)
Elimination of inventory profit in consolidation (1,321) (1,253) (1,089)
--------- --------- ---------
Total consolidated assets $ 96,680 $ 77,528 $ 65,255
========= ========= =========
</TABLE>
Revenues from international customers are less than two percent of the
Company's consolidated revenues.
F-15
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note F - Foreign Currency Transactions
The Company routinely enters into forward exchange contracts in
anticipation of future purchases of inventory denominated in foreign currencies.
These forward exchange contracts are used to reduce the Company's exposure to
changes in foreign exchange rates and are not held for the purpose of trading or
speculation. The Company had forward exchange contracts of $6,600,000 and
$18,175,000 at December 31, 1998 and 1997, respectively to protect the purchase
price of merchandise under such commitments. Gains and losses on forward
exchange contracts are deferred and accounted for as part of the purchase price
of imported merchandise. At December 31, 1998, forward exchange contracts have
maturity dates through May 1999. The unrealized loss on these forward exchange
contracts is approximately $46,000.
Note G - Income Taxes
Significant items comprising the Company's deferred tax assets and
liabilities are as follows:
December 31,
1998 1997
----------------------------
Deferred tax assets:
Inventory allowances and capitalization $ 562,000 $ 590,000
Allowance for doubtful accounts and
sales allowances 75,000 457,000
Deferred rent 304,000 88,000
Deferred compensation 1,441,000 965,000
Other 40,000 40,000
----------------------------
2,422,000 2,140,000
----------------------------
Deferred tax liabilities:
Depreciation (778,000) (633,000)
Undistributed foreign earnings (523,000) (759,000)
----------------------------
(1,301,000) (1,392,000)
----------------------------
Net deferred tax assets $ 1,121,000 $ 748,000
============================
F-16
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note G - Income Taxes (continued)
The provision (benefits) for income taxes consists of the following:
December 31,
1998 1997 1996
-----------------------------------------------
Current:
Federal $ 9,249,000 $ 6,385,000 $ 6,543,000
State and local 1,750,000 1,628,000 1,650,000
Foreign 37,000 24,000 22,000
-----------------------------------------------
11,036,000 8,037,000 8,215,000
Deferred:
Federal (330,000) 133,000 32,000
State and local (43,000) 19,000 4,000
-----------------------------------------------
(373,000) 152,000 36,000
-----------------------------------------------
$ 10,663,000 $ 8,189,000 $ 8,251,000
===============================================
The reconciliation of income tax computed at the U.S. federal statutory
tax rate to the effective income tax rate for 1998, 1997 and 1996 is as follows:
1998 1997 1996
------------------------
Federal income tax at statutory rate 35.0% 35.0% 35.0%
State and local taxes, net of federal tax benefit 4.5 5.0 5.0
------------------------
39.5% 40.0% 40.0%
========================
Note H - Stock Options Plans and Grants
1. 1994 stock option plan
The Company's 1994 Incentive Stock Option Plan, as amended on May 29,
1997, authorizes the grant of options to employees for up to 1,500,000 shares of
the Company's common stock. Certain options granted under the Plan vest in
one-third increments in each of the first, second and third years following the
date of grant, while certain other options vest over five years. Options granted
have 10-year terms. Non-employee Director options granted have 10 year terms and
vest 50% on the first anniversary of the date of grant and become fully
exercisable at the end of two years.
The Company has elected to continue to follow Accounting Principles Board
Opinion No. 25, in accounting for its employee stock options. Under APB 25, when
the exercise price of the Company's employee stock options equals the market
price of the underlying stock on the date of grant, no compensation expense is
recognized. Had compensation cost for the stock options been determined based on
the fair value at the grant dates for awards under the plan, consistent with the
alternative method set forth under SFAS 123, net income and earnings per share
would have been reduced by approximately $643,000 and $.04, $441,000 and $.03,
and $371,000 and $.02, in 1998, 1997 and 1996, respectively.
F-17
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note H - Stock Options Plans and Grants (continued)
The effects of applying SFAS 123 on this pro forma disclosure may not be
indicative of future results. SFAS 123 does not apply to grants prior to 1995,
and additional awards in future years may be granted.
Pro forma information regarding net income and earnings per share is
required by Statement 123 and has been determined as if the Company had
accounted for its employee stock options under the fair value method of that
Statement. The fair value for these options was estimated at the date of grant
using a Black-Scholes option pricing model with the following weighted-average
assumptions for 1998, 1997 and 1996, respectively: risk-free interest rate of
5.25%, 5.50% and 6.25%; 0% dividend yields; expected volatility factors of
54.2%, 34.6% and 35.9% and expected lives of 5.6, 5.8 and 6.3 years. The
weighted-average fair value of options granted during 1998, 1997 and 1996 were
$9.55, $6.63 and $7.21, respectively.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options, which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions including the expected stock price
volatility. Because the Company's employee stock options have characteristics
significantly different from those of traded options, and because changes in the
subjective input assumptions can materially affect the fair value estimate, in
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options.
The following table summarizes all stock option transactions from December
31, 1995 through December 31, 1998.
<TABLE>
<CAPTION>
Weighted-Average
Shares Exercise Price
----------------------------------------------
<S> <C> <C>
Outstanding at December 31, 1995 702,458
Granted 156,583 $15.89
Exercised (53,797) $ 6.35
Forfeited (43,919) $ 9.04
-----------------------
Outstanding at December 31, 1996 761,325
Granted 325,725 $15.60
Exercised (56,981) $ 6.94
Forfeited (74,856) $14.04
-----------------------
Outstanding at December 31, 1997 955,213
Granted 335,700 $17.40
Exercised (166,587) $ 8.55
Forfeited (98,888) $12.74
-----------------------
Outstanding at December 31, 1998 1,025,438
=======================
</TABLE>
F-18
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note H - Stock Options Plans and Grants (continued)
The following table summarizes information concerning currently
outstanding and exercisable stock options at December 31, 1998:
<TABLE>
<CAPTION>
Outstanding Stock Options Exercisable Stock Options
-------------------------- -------------------------
Weighted Average Weighted
Range of Outstanding Remaining Weighted Average Exercisable Average
Exercise Prices Shares Contractual Life Exercise Price Shares Exercise Price
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 6.00 to $10.00 248,268 5.82 years $ 8.24 106,868 $ 6.57
$ 10.01 to $16.00 299,130 7.71 years $13.49 60,578 $13.71
$ 16.01 to $22.94 478,040 8.55 years $17.90 46,207 $18.15
</TABLE>
2. Stock option grants
In 1994, the Board of Directors granted non-transferable stock options to
an officer of the Company for the purchase of 222,950 shares of Class A Common
Stock at an exercise price of $2.1875 per share. In 1998, 32,950 options were
exercised and at December 31, 1998, 120,000 options were outstanding and
exercisable.
Note I - Benefit Plans
1. 401(k) Plan
The Company's 401(k) profit-sharing plan covers all non-union employees,
subject to certain minimum age and length of service requirements who are
permitted to contribute specified percentages of their salary up to the maximum
permitted by the Internal Revenue Service. The Company is obligated to make a
matching contribution and may make an additional discretionary contribution, as
defined. Contributions to the plan for the years ended December 31, 1998, 1997
and 1996 were approximately $89,000, $71,000 and $54,000, respectively.
F-19
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note I - Benefit Plans (continued)
2. Deferred compensation plan
The Kenneth Cole Productions, Inc. Deferred Compensation Plan is an
unfunded non-qualified plan maintained primarily to provide deferred
compensation benefits for a select group of "highly compensated employees."
The Company accounts for the investments in the deferred compensation plan
in accordance with SFAS 115, "Accounting for Certain Investments in Debt and
Equity Securities," and such investments have been classified as trading.
Note J - Commitments and Contingencies
1. Capital lease
Included in property and equipment are assets held under capital lease of
$967,000, less accumulated amortization of $48,000. At December 31, 1998, future
minimum lease payments consist of the following:
1999 $235,000
2000 235,000
2001 235,000
2002 235,000
2003 177,000
--------------
Total minimum lease payments $1,117,000
Less amounts representing interest (190,000)
--------------
Present value of minimum lease payments 927,000
Less current maturities (167,000)
--------------
Capital lease obligation, less current maturities $760,000
==============
2. Operating leases
The Company leases office, retail, and warehouse facilities under
non-cancelable operating leases between 5 and 20 years with options to renew at
varying terms. Future minimum lease payments for non-cancelable leases with
initial terms of one year or more consisted of the following at December 31,
1998:
1999 $ 8,193,000
2000 9,116,000
2001 9,040,000
2002 8,651,000
2003 7,974,000
Thereafter 31,390,000
--------------
Total minimum cash payments $74,364,000
==============
F-20
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note J - Commitments and Contingencies (continued)
In addition, certain of these leases contain rent escalation and
additional percentage rent payments to be made. Rent expense for the years ended
December 31, 1998, 1997 and 1996 was $9,313,000, $6,903,000 and $4,646,000,
respectively. In December 1998, the Company entered into a lease agreement for
new office space for its executive offices and showroom. The turnover of space
and date of occupancy has not yet been determined. Accordingly, the minimum
lease payments relating to this lease have not been included in the future
minimum lease payment schedule above. However, there will be no payments made
during 1999, and the Company's best estimate of future minimum lease payments
are approximately $3.3 million for the next five years and $14.0 million
thereafter.
2. Letters of credit
At December 31, 1998 and 1997, the Company was contingently liable for
approximately $1,169,000 and $1,957,000 of open letters of credit, respectively.
In addition, at December 31, 1998 and 1997, the Company was contingently liable
for approximately $400,000 of standby letters of credit.
3. Concentrations
In the normal course of business, the Company sells to major department
stores and specialty retailers and believes that its broad customer base will
mitigate the impact that financial difficulties of any such retailers might have
on the Company's operations. In 1998, the Company had no customer account for
more than 10% of net sales. The Company had sales to two customers that
accounted for 12.4% and 10.0% of net sales in 1997 and sales to one customer in
1996 that accounted for 14.2% of net sales.
The Company sources each of its product lines separately, based on the
individual design, styling and quality specifications of such products. The
Company primarily sources its products directly or indirectly through
manufacturers in Italy, Spain, Brazil, India, China and Korea. The Company
attempts to limit the concentration with any one manufacturer. However,
approximately 46% of the dollar value of total handbag purchases by the Company
were produced by one manufacturer in China in 1998 and 20% by two manufacturers
in India in 1997, respectively. In addition 58% and 36% of Kenneth Cole men's
footwear purchases were from one manufacturer in Italy during 1998 and 1997,
respectively. The Company believes it has alternative manufacturing sources
available to meet its current and future production requirements in the event
the Company is required to change current manufacturers or current manufacturers
are unavailable to fulfill the Company's production needs.
4. Other
The Company, from time to time, is a party to litigation that arises in
the normal course of its business operations. The Company presently is not a
party to any such litigation that would have a material adverse effect on its
business or operations.
F-21
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note K - Comprehensive Income
In 1998, the Company adopted Statement of Financial Accounting Standards
No. 130 "Reporting Comprehensive Income ("SFAS 130"). Statement 130 establishes
new rules for the reporting and display of comprehensive income and its
components. Comprehensive income is generally defined as all changes in
shareholder's equity exclusive of transactions with owners. SFAS 130 requires
the disclosure of comprehensive income and its components. Prior to adoption
these components were reported separately in shareholders' equity and are
currently included in comprehensive income and disclosed in the Statement of
Changes in Shareholders' Equity. Income taxes were not required to be provided
on these items and there were no reclassification adjustments made during 1998
or 1997.
Note L - Shareholders' Equity
1. Common stock
Class A Common Shareholders are entitled to one vote for each share held
of record, and Class B Common Shareholders are entitled to ten votes for each
share held of record. Each share of Class B Common Stock is convertible into one
share of Class A Common Stock at the option of the Class B Shareholder. The
Class A Common Shareholders vote together with Class B Common Shareholders on
all matters subject to shareholder approval, except Class A Common Shareholders
vote separately as a class to elect 25% of the Board of Directors of the
Company. Shares of neither class of common stock have preemptive or cumulative
voting rights.
2. Preferred stock
The Company's Certificate of Incorporation authorizes the issuance of
1,000,000 shares of preferred stock. The preferred stock may be issued from time
to time as determined by the Board of Directors of the Company, without
shareholder approval. Such preferred stock may be issued in such series and with
such preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or other provisions, as may be fixed
by the Board of Directors. There are no shares of preferred stock currently
outstanding.
3. Common stock repurchase
On August 13, 1998, the Board of Directors of the Company authorized
management to repurchase up to 500,000 shares of the Company's Class A Common
Stock. As of December 31, 1998, 350,000 shares were repurchased, in the open
market, at an aggregate price of $4,968,000 and have been recorded as treasury
stock.
F-22
<PAGE>
Kenneth Cole Productions, Inc.
Notes to Consolidated Financial Statements (continued)
Note M - Quarterly Financial Data (Unaudited)
Summarized quarterly financial data for 1998 and 1997 appear below (in
thousands, except per share data):
First Second Third Fourth
Quarter Quarter Quarter Quarter
-------------------------------------------------
1998
Net sales $52,029 $48,331 $62,010 $57,411
Licensing revenue 1,656 1,791 2,294 2,616
Net revenues 53,685 50,122 64,304 60,027
Gross profit 23,585 21,165 27,792 26,193
Operating income 6,659 4,008 9,377 6,546
Net income 4,093 2,501 5,731 4,006
Earnings per share basic $ .31 $ .19 $ .43 $ .31
Earnings per share diluted $ .30 $ .18 $ .42 $ .30
1997
Net sales $44,910 $40,352 $50,287 $49,729
Licensing revenue 1,056 1,212 1,726 2,035
Net revenues 45,966 41,564 52,013 51,764
Gross profit 18,672 15,189 23,144 22,428
Operating income 5,532 1,410 8,158 5,693
Net income 3,252 794 4,871 3,485
Earnings per share basic $ .25 $ .06 $ .37 $ .26
Earnings per share diluted $ .24 $ .06 $ .36 $ .26
Certain amounts reported during the first three quarters of 1998 have been
reclassified to conform with the year-end 1998 presentation.
F-23
<PAGE>
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
KENNETH COLE PRODUCTIONS, INC.
By /s/ KENNETH D. COLE
-------------------
Kenneth D. Cole
President and Chief Executive Officer
Date: March 30, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed by the following persons on behalf of the Registrant and in the
capacities and on the dates indicated.
Signature Title Date
- --------------------------------------------------------------------------------
/S/ KENNETH D. COLE President, Chief Executive Officer March 30, 1999
- -------------------------- and Director
Kenneth D. Cole
/S/ PAUL BLUM Executive Vice President, March 30, 1999
- -------------------------- Chief Operating Officer
Paul Blum and Director
/S/ STANLEY A. MAYER Executive Vice President, March 30, 1999
- -------------------------- Chief Financial Officer,
Stanley A. Mayer Treasurer and Director
/S/ DAVID P. EDELMAN Vice President Finance March 30, 1999
- -------------------------- (Principal Accounting Officer)
David P. Edelman
/S/ ROBERT C. GRAYSON Director March 30, 1999
- --------------------------
Robert C. Grayson
/S/ DENIS F. KELLY Director March 30, 1999
- --------------------------
Denis F. Kelly
/S/ JEFFREY G. LYNN Director March 30, 1999
- --------------------------
Jeffrey G. Lynn
F-24
<PAGE>
Kenneth Productions, Inc.
Schedule II
Valuation and Qualifying Accounts
For the years ended December 31, 1998, 1997, and 1996
(in thousands)
<TABLE>
<CAPTION>
Balance at Charged to Balance
Beginning Costs and at End
Description Of Period Expenses Deductions of Period
- ----------- --------- -------- ---------- ---------
<S> <C> <C> <C> <C>
Year ended December 31, 1998
Allowance for doubtful accounts $ (80,000) $ (197,000) $ 152,000 $ (125,000)
Reserve for returns and sales allowances (2,900,000) (400,000) (3,300,000)
----------- ----------- ----------- -----------
$(2,980,000) $ (597,000) $ 152,000 $(3,425,000)
=========== =========== =========== ===========
Year ended December 31, 1997
Allowance for doubtful accounts $ (65,000) $ (157,000) $ 142,000 $ (80,000)
Reserve for returns and sales allowances (2,200,000) (700,000) (2,900,000)
----------- ----------- ----------- -----------
$(2,265,000) $ (857,000) $ 142,000 $(2,980,000)
=========== =========== =========== ===========
Year ended December 31, 1996
Allowance for doubtful accounts $ (30,000) $ (70,000) $ 35,000 $ (65,000)
Reserve for returns and sales allowances (1,800,000) (400,000) (2,200,000)
----------- ----------- ----------- -----------
$(1,830,000) $ (470,000) $ 35,000 $(2,265,000)
=========== =========== =========== ===========
</TABLE>
Exhibit 10.14
(Standard Form of Office Lease Omitted)
- --------------------------------------------------------------------------------
LEASE
- --------------------------------------------------------------------------------
SAAR COMPANY, LLC,
as Landlord,
To
KENNETH COLE PRODUCTIONS, INC.,
as Tenant,
Premises: Entire Third (3rd), Fourth (4th),
Fifth (5th) and Sixth (6th) Floors
and Portion of Ground Floor
601 West 50th Street
New York, New York
<PAGE>
Kenneth Cole
TABLE OF CONTENTS TO RIDER
Article Page
- ------- ----
37. COMMENCEMENT DATE AND EXPIRATION DATE..................................1
38. RIDER PROVISIONS PREVAIL; ADDITIONAL DEFINITIONS.......................1
39. ESCALATION FOR INCREASE IN REAL ESTATE TAXES...........................4
40. ESCALATION FOR OPERATING EXPENSES......................................6
41. AMENDING ARTICLE 11...................................................10
42. SUPPLEMENTING ARTICLE 3...............................................13
43. BROKER................................................................15
44. LIMITATION OF LIABILITY...............................................15
45. INDEMNIFICATION AND INSURANCE.........................................15
46. ELECTRIC CURRENT......................................................18
47. ADDENDA TO ARTICLE 6 - REQUIREMENTS OF LAW............................19
48. BINDING EFFECT........................................................19
49. AIR CONDITIONING......................................................19
50. AS-IS TENANT'S WORK; CONTRIBUTION.....................................19
51. FIXED RENT; FREE FIXED RENT...........................................21
52. MISCELLANEOUS.........................................................22
<PAGE>
53. RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 33............................................28
54. RENT RESTRICTIONS.....................................................30
55. ADDENDUM TO ARTICLE 16 - BANKRUPTCY...................................30
56. SECOND FLOOR PREMISES.................................................31
57. FIFTH FLOOR PREMISES..................................................32
58. BASEMENT PREMISES.....................................................32
59. GROUND FLOOR PREMISES.................................................34
60. ADDENDUM TO ARTICLE 24; DELIVERY OF POSSESSION........................35
61. TENANT'S ADDITIONAL RIGHTS............................................36
62. RENEWAL OPTIONS.......................................................37
63. DELAYED FOURTH FLOOR PREMISES.........................................40
64. INTENTIONALLY OMITTED.................................................40
65. REFUSAL SPACE OPTION..................................................40
<PAGE>
EXHIBIT "A" - Page 1 - Ground Floor Premises
EXHIBIT "A" - Page 2 - Early Fourth Floor Premises
EXHIBIT "B" - Basement Premises
EXHIBIT "C" - Prohibited Uses
EXHIBIT "D" - Expiration Dates for Existing Leases
<PAGE>
(Standard Form of Office Lease Omitted)
RIDER ANNEXED TO LEASE DATED AS OF DECEMBER 17, 1998 BETWEEN SAAR COMPANY, LLC,
AS LANDLORD, AND KENNETH COLE PRODUCTIONS, INC., AS TENANT
37. COMMENCEMENT DATE AND EXPIRATION DATE:
A. The term "Commencement Date" shall mean the date upon which Landlord
shall have first tendered possession of a portion of the demised premises
designated in Section 18 of Article 38 hereof to Tenant, and the term
"Expiration Date" shall mean the final day of the calendar month in which occurs
the date which is fifteen (15) years and seven (7) months following the
Commencement Date or such earlier date upon which this lease may terminate in
accordance with its terms or by law. The term "Lease Year" shall mean each
calendar year occurring within the term of this lease, except that the first
Lease Year shall commence on the Commencement Date and end on the final day of
the calendar month in which occurs the day immediately preceding the first
anniversary of the Commencement Date.
B. After the Commencement Date shall occur and following the inclusion of
any portion of the building as part of the demised premises, Tenant and Landlord
shall promptly execute and deliver to each other a supplementary agreement or
agreements to this lease setting forth the Commencement Date and/or the date of
inclusion of any portion of the demised premises and the Expiration Date and
such other information as Landlord may reasonably request in connection
therewith. Neither Landlord's failure in requesting such statement nor Tenant's
failure to execute and deliver same shall vitiate the foregoing provisions of
this Article or the inclusion of any such portion.
38. RIDER PROVISIONS PREVAIL; ADDITIONAL DEFINITIONS:
A. If and to the extent that any of the provisions of this Rider conflict
or are otherwise inconsistent with any of the preceding printed provisions of
this lease, or of the Rules and Regulations attached to this lease, whether or
not such inconsistency is expressly noted in this Rider, the provisions of this
Rider shall prevail, and in case of inconsistency with said Rules and
Regulations, shall be deemed a waiver of such Rules and Regulations with respect
to Tenant to the extent of such inconsistency.
B. For the purposes of this lease and all agreements supplemental to this
lease, and all communications with respect thereto, unless the context otherwise
requires:
1. The term "fixed rent" shall mean rent at the annual rental rate
or rates provided for in Article 51 of this lease as same may be adjusted
pursuant to the terms of this lease.
<PAGE>
2. The term "additional rent" shall mean all sums of money, other
than fixed rent, and which become due and payable from Tenant to Landlord
hereunder, and Landlord shall have the same remedies therefor as for a default
in payment of fixed rent.
3. The term "rent" and "rents" shall mean and include fixed rent
and/or additional rent hereunder.
4. The terms "include", "including" and "such as" shall each be
construed as if followed by the phrase "without being limited to".
5. The term "obligations of this lease", and words of like import,
shall mean the covenants to pay rent and additional rent under this lease and
all of the other covenants and conditions contained in this lease. Any provision
in this lease that one party or the other or both shall do or not do or shall
cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
6. The term "Tenant's obligations hereunder", and words of like
import, and the term "Landlord's obligations hereunder", and words of like
import, shall mean the obligations of this lease which are to be performed or
observed by Tenant, or by Landlord, as the case may be. Reference to
"performance" of either party's obligations under this lease shall be construed
as "performance and observance".
7. Reference to Tenant being or not being "in default hereunder", or
words of like import, shall mean that Tenant is in default in the performance of
one or more of Tenant's obligations hereunder, or that Tenant is not in default
in the performance of any of Tenant's obligations hereunder, or that a condition
of the character described in Article 16(a) has occurred and continues or has
not occurred or does not continue, as the case may be.
8. References to Landlord as having "no liability to Tenant" or
being "without liability to Tenant", shall mean that Tenant is not entitled to
claim actual or constructive eviction, partial or total, or to receive any
abatement or diminution of rent, except as otherwise specifically provided
herein, or to be relieved in any manner of any of its other obligations
hereunder, or to be compensated for loss or injury suffered or to enforce any
other kind of liability whatsoever against Landlord under or with respect to
this lease or with respect to Tenant's use or occupancy of the demised premises,
except as specifically provided herein.
9. The term "laws and/or requirements of public authorities" and
words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county and borough governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other governmental, public or
quasi-public authorities, having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
<PAGE>
10. The term "requirements of insurance bodies" and words of like
import shall mean rules, regulations, orders and other requirements of the New
York Board of Fire Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the building and/or the
demised premises.
11. The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
12. Reference to "termination of this lease" includes expiration or
earlier termination of the term of this lease or cancellation of this lease
pursuant to any of the provisions of this lease or to law. Upon a termination of
this lease, the term and estate granted by this lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this lease, may be, performed
after such termination, and, in any event, unless expressly otherwise provided
in this lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this lease.
13. The term "in full force and effect" when herein used in
reference to this lease as a condition to the existence or exercise of a right
on the part of Tenant shall be construed in each instance as including the
further condition that at the time in question no default on the part of Tenant
exists, and no event has occurred which has continued to exist for such period
of time (after the notice, if any, required by this lease), as would entitle
Landlord to terminate this lease or to dispossess Tenant.
14. The term "Tenant" shall mean Tenant herein named or any assignee
or other successor in interest (immediate or remote) of Tenant herein named,
while such Tenant or such assignee or other successor in interest, as the case
may be, is in possession of the demised premises as owner of the Tenant's estate
and interest granted by this lease and also, if Tenant is not an individual or a
corporation, all of the persons, firms and corporations then comprising Tenant.
15. Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender. The terms "person" and
"persons" as used in this lease, shall be deemed to include natural persons,
firms, corporations, associations and any other private or public entities.
16. The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
17. All references in this lease to numbered Articles, lettered
Paragraphs, Sections, Subdivisions
<PAGE>
and lettered Exhibits are references to Articles, Paragraphs, Sections and
Subdivisions of this lease, and Exhibits annexed to (and thereby made part of)
this lease, as the case may be, unless expressly otherwise designated in the
context.
18. Landlord and Tenant agree that for purposes of this lease only
and the determination of fixed rent, the calculation of additional rent and
other calculations under this lease:
(1) the square foot area of the Ground Floor Premises shall be
deemed to be 9,000;
(2) the square foot area of the Third Floor Premises shall be
deemed to be 21,000;
(3) the Fourth Floor Premises shall consist of:
(a) the "Early Fourth Floor Premises", which is shown
on page 2 of Exhibit "A" annexed hereto, for which
the square foot area shall be deemed to be 9,600;
and
(b) the "Delayed Fourth Floor Premises", which
constitutes the remainder of the Fourth Floor
Premises, for which the square foot area shall be
deemed to be 7,900;
(4) the square foot area of the Fifth Floor Premises shall be
deemed to be 17,500; and
(5) the square foot area of the Sixth Floor Premises shall be
deemed to be 17,500.
Landlord and Tenant agree that the term "SFA" shall be deemed to mean the
aggregate of the square foot areas listed above and the square footage of any
other portions of the building then comprising the demised premises, for which
possession has been tendered to Tenant. If Landlord shall tender to Tenant any
portions of the foregoing spaces or any other space which is to be incorporated
in the demised premises pursuant to this lease, then Tenant shall accept same
and the terms of this lease shall apply to such portion(s) and the SFA shall be
increased to incorporate the inclusion of such portion(s) in the demised
premises.
39. ESCALATION FOR INCREASE IN REAL ESTATE TAXES:
A. As used herein:
1. "Taxes" shall mean all real estate taxes, assessments, sewer and
water rents, governmental levies, municipal taxes, county taxes or any other
governmental charge, general or special, ordinary or extraordinary, unforeseen
as well as foreseen, of any kind or nature whatsoever, which are or may be
assessed, levied or imposed upon all or any part of the land (which for purposes
<PAGE>
of this Article shall include the tax lots of the City of New York designated as
Block 1098, Lots 22 and 29), the building and the sidewalks, plazas or streets
in front of or adjacent thereto, including any tax, excise or fee measured by or
payable with respect to any rent, and levied against Landlord and/or the land
and building, under the laws of the United States, the State of New York, or any
political subdivision thereof, or by the City of New York, or any political
subdivision thereof. If, due to a future change in the method of taxation or in
the taxing authority, a new or additional real estate tax, or a franchise,
income, transit, profit or other tax or governmental imposition, however
designated, shall be levied against Landlord, and/or the land and building, in
addition to, or in substitution in whole or in part for any tax which would
constitute "Taxes", or in lieu of additional Taxes, such tax or imposition shall
be deemed for the purposes hereof to be included within the term "Taxes". Taxes
shall not include any interest or penalties, unless caused by Tenant's
delinquent payment of charges under this lease or interest on the installment
payments of special assessments. Landlord represents that, to the best of its
knowledge, there are currently no unpaid assessments levied on the building.
Landlord represents to Tenant that as of the date hereof there are no special
real estate tax assessments or real estate tax abatements in effect on the
building or the land.
2. "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this lease or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
3. "Base Tax Year" shall mean the twelve (12) month period
commencing on the day next following the expiration of the Free Fixed Rent
Period (hereinafter defined) applicable individually to each portion of the
demised premises (the "Base Tax Year"). "Base Tax" shall mean the Taxes for the
Base Tax Year determined by prorating Taxes for the two (2) Tax Years in which
the Base Tax Year occurs.
4. "Tenant's Proportionate Share" shall mean the percentage derived
by dividing the SFA by 126,635.
B. If the Taxes for any Tax Year shall be greater than the Base Tax,
Tenant shall pay as additional rent for such Tax Year a sum equal to Tenant's
Proportionate Share of the amount by which the Taxes for such Tax Year are
greater than the Base Tax (which amount is hereinafter called the "Tax
Payment"). Should this lease commence or terminate prior to the expiration of a
Tax Year, such Tax Payment shall be prorated to, and shall be payable on, or as
and when ascertained after, the Commencement Date or the Expiration Date as the
case may be. Tenant's obligation to pay such additional rent and Landlord's
obligation to refund pursuant to Paragraph C below, as the case may be, shall
survive the termination of this lease. If the Taxes for any Tax Year subsequent
to the Base Tax Year, or an installment thereof, shall be reduced before such
Taxes, or such installment, shall be paid, the amount of Landlord's reasonable
costs and expenses of obtaining such reduction (but not exceeding the amount of
such reduction) shall be added to and be deemed part of the Taxes for such Tax
Year. Payment of additional rent for any Tax Payment due from Tenant shall be
made as and subject to the conditions hereinafter provided in this Article.
<PAGE>
C. Only Landlord shall be eligible to institute proceedings to contest the
Taxes or reduce the assessed valuation of the land and building. Landlord shall
be under no obligation to contest the Taxes or the assessed valuation of the
land and the building for any Tax Year or to refrain from contesting the same,
and may settle any such contest on such terms as Landlord in its sole judgment
considers proper. Notwithstanding the foregoing, if Tenant named herein shall
occupy at least seventy-five (75%) percent of the rentable area of the building
other than the garage space for the conduct of its business and Tenant shall, by
timely notice to Landlord, request Landlord to do so, Landlord shall institute
appropriate proceedings to reduce the Taxes for any Tax Year and act diligently
to effect a reduction therein. For purposes of calculations to be made under
this lease, the parties agree that the rentable area for the building other than
the garage space shall be deemed to be 119,000 square feet. If Landlord shall
receive a refund for any Tax Year for which a Tax Payment shall have been made
by Tenant pursuant to Paragraph B above, Landlord shall repay to Tenant, with
reasonable promptness, Tenant's Proportionate Share of such refund after
deducting from such refund the reasonable costs and expenses (including experts'
and attorneys' fees) of obtaining such refund. Should said refund occur after
the expiration or earlier termination (but not as a result of default by Tenant)
of the term of this lease, Landlord shall promptly repay to Tenant Tenant's
Proportionate Share of such refund after deducting reasonable costs and expenses
(including experts' and attorneys' fees) of obtaining such refund. If the
assessment for the Base Tax Year shall be reduced from the amount originally
imposed after Landlord shall have rendered a comparative statement (as provided
in Paragraph D below) to Tenant with respect to a Tax Year, the amount of the
Tax Payment shall be adjusted in accordance with such change and Tenant, on
Landlord's demand, shall pay any increase in additional rent resulting from such
adjustment.
D0 Tenant's Tax Payment for each Tax Year shall be due and payable in two
equal semi-annual installments, in advance on the first day of each June and
December during each Tax Year, based upon the written comparative statement
furnished by Landlord prior to the commencement of such Tax Year, until such
time as a new written statement for a subsequent Tax Year shall become
effective. If any such statement is furnished to Tenant after the commencement
of a Tax Year in respect of which such statement is rendered, Tenant shall,
within 20 days thereafter, pay to Landlord an amount equal to the amount of any
underpayment of Tenant's Tax Payment with respect to such Tax Year and, in the
event of an overpayment, Landlord will credit Tenant the amount of Tenant's
overpayment against subsequent payments under this Article, except that if this
lease shall have expired or terminated prior to the furnishing of such statement
and Tenant shall have remitted all payments of rent and additional rent required
of Tenant under this lease, then any such overpayment shall be promptly refunded
to Tenant. If there shall be any increase in Taxes for any Tax Year, whether
during or after such Tax Year, Landlord shall furnish a revised statement for
such Tax Year, and Tenant's Tax Payment for such Tax Year shall be adjusted and
paid substantially in the same manner as provided in the preceding sentence. If
during the term of this lease, Taxes are required to be paid (either to the
appropriate taxing authorities by law or as tax escrow payments to a superior
mortgagee) in full or in monthly, quarterly, or other installments, on any other
date or dates than as presently required, then at Landlord's option, Tenant's
Tax Payments shall be correspondingly accelerated or revised so that said
Tenant's Tax Payments are due at least 30 days prior to the date payments are
due to the taxing authorities or the superior mortgagee. The benefit of any
discount for any early payment or prepayment of Taxes shall accrue solely to the
benefit of
<PAGE>
Landlord, but Tenant's Proportionate Share of such discount shall be subtracted
from Taxes if Tenant shall have made its payments hereunder in a timely manner
which permits Landlord to receive such discount . Landlord will furnish Tenant
with a reproduced copy of the applicable bill for Taxes with the delivery of any
statement hereunder provided by Landlord.
E0 Landlord's failure during the lease term to prepare and deliver any tax
statements, or Landlord's failure to make a demand under this Article or under
any other provision of this lease shall not in any way be deemed to be a waiver
of, or cause Landlord to forfeit or surrender, its rights to collect any items
of additional rent which may have become due pursuant to this Article during the
term of this lease. Tenant's liability for the additional rent due under this
Article shall survive the expiration or sooner termination of this lease.
F0 In no event shall any adjustment of Tax Payments hereunder result in a
decrease in the fixed rent or additional rent payable pursuant to any other
provision of this lease, it being agreed that the payment of additional rent
under this Article is an obligation supplemental to Tenant's obligation to pay
fixed rent.
40 ESCALATION FOR OPERATING EXPENSES:
A0 For the purposes of this Article:
1 The term "Escalation Year" shall mean each calendar year which
shall include any part of the term of this lease.
2 The term "Tenant's Proportionate Share" shall mean the percentage
derived by dividing the SFA by 126,635.
3 The term "Base Year" shall mean the twelve (12) month period
commencing on the day next following the expiration of the Free Fixed Rent
Period applicable individually to each portion of the demised premises.
4 The term "Operating Expenses" shall mean all costs and expenses
(and taxes thereon, if any) paid or incurred by Landlord or on behalf of
Landlord with respect to the operation, cleaning, repair, safety, management,
security and maintenance of the land and the building, building equipment,
sidewalks, curbs, plazas, parking areas and other areas adjacent to the
building, and with respect to the services provided tenants, including: (i)
salaries, wages and bonuses paid to, and the cost of any hospitalization,
medical, surgical, union and general welfare benefits (including group life
insurance), any pension, retirement or life insurance plan and other benefit or
similar expense (collectively "Wages") relating to employees of Landlord or
employees whose wages are chargeable to Landlord engaged in the operation,
cleaning, repair, safety, management, security or maintenance of the building
and the building equipment or in providing building maintenance services to
tenants; (ii) social security, unemployment and other payroll taxes, the cost of
providing disability and worker's compensation coverage imposed by any legal
requirements, union contract or otherwise with respect to said employees; (iii)
the cost of electricity, gas, steam, water, air conditioning and
<PAGE>
other fuel and utilities; (iv) the cost of casualty, rent, liability, fidelity,
plate glass and any other insurance; (v) the cost of repairs, maintenance and
painting; (vi) the cost or rental of all building and cleaning supplies, tools,
materials and equipment; (vii) the cost of uniforms, work clothes and dry
cleaning; (viii) window cleaning, concierge, guard, watchman or other security
personnel, service or system, if any; (ix) management fees or, if no managing
agent is employed by Landlord, a sum in lieu thereof not in excess of then
prevailing rates for management fees payable in the Borough of Manhattan, City
of New York for similar office buildings; (x) charges of independent contractors
performing work included within this definition of Operating Expenses; (xi)
telephone and stationery; (xii) legal, accounting and other professional fees
and disbursements incurred in connection with the operation and management of
the building; (xiii) decorations; (xiv) depreciation of hand tools and other
movable equipment used in the operation, cleaning, repair, safety, management,
security or maintenance of the building; and (xv) exterior and interior
landscaping.
Provided, however, that the foregoing costs and expenses shall exclude or
have deducted from them, as the case may be:
(a) Wages above the grade of building manager;
(b) expenditures for capital improvements, other than those
which under generally applied real estate practice are expenses or regarded as
deferred expenses and other than capital expenditures, including, without
limitation, the cost of purchasing or leasing capital equipment, made by reason
of legal requirements or insurance requirements or for the purpose of reducing
energy consumption or otherwise reducing Operating Expenses, in any of which
cases the cost thereof shall be included in Operating Expenses for the
Escalation Year in which the costs are incurred and subsequent Escalation Years,
on a straight-line basis, amortized over the useful life thereof with an
interest factor equal to two (2) percentage points above the prime commercial
lending rate of Citibank, N.A., charged to its customers of highest credit
standing for ninety (90) day unsecured loans ("Expense Interest Rate), at the
time of Landlord's having made said expenditure, but such inclusion in any
Escalation Year for the reduction of energy consumption or Operating Expenses
shall be specified in Landlord's statement therefor and shall not exceed the
savings actually realized by Landlord.
(c) amounts received by Landlord through proceeds of insurance
to the extent they are compensation for sums previously included in Operating
Expenses hereunder;
(d) costs of repairs or replacements incurred by reason of
fire or other casualty or condemnation to the extent Landlord would be
compensated therefor under insurance policies normally maintained by owners of
similar buildings or is compensated by the condemning authority;
(e) advertising and promotional expenditures;
(f) costs incurred in performing work or furnishing services
for any tenant (including Tenant), whether at such tenant's or Landlord's
expense, to the extent that such
<PAGE>
work or service is in excess of any work or service that Landlord is obligated
to furnish to Tenant at Landlord's expense;
(g) depreciation or amortization, except as provided above;
(h) brokerage commissions;
(i) Taxes set forth in Article 39 hereof and any income,
excess profit or franchise taxes;
(j) refinancing costs and mortgage interest and amortization
payments and rental payments under any ground lease;
(k) all costs (including attorney's and broker's fees)
relating to activities for the eviction, relocation or any other cause of action
or agreement relating to existing tenants in the building;
(l) costs incurred as the result of the negligence or willful
misconduct of Landlord, its agents, employees or contractors;
(m) purchase or lease of capital equipment, except as
otherwise provided herein;
(n) reserves for future expenses;
(o) any items otherwise reimbursed to Landlord under another
tenant's lease;
(p) repairs and maintenance to the extent covered by
guaranties or warranties;
(q) costs incurred in connection with the testing for,
removal, enclosure or encapsulation of any asbestos or asbestos containing
materials;
(r) the cost of electricity furnished to the demised premises
or to space leased to other lessees and occupants of the building or to space
available for lease in the building;
(s) rental expenses for Landlord's management office in the
building; and
(t) costs or expenses which are duplicative of any costs or
expenses Tenant otherwise pays to Landlord under this lease
<PAGE>
If during all or part of any Escalation Year including the Base Year,
Landlord shall not furnish any particular item(s) of work or service (which
would otherwise constitute an Operating Expense hereunder) to portions of the
building due to the fact that (i) such portions are not occupied or leased, (ii)
such item of work or service is not required or desired by the tenant of such
portion, (iii) such tenant is itself obtaining and providing such item of work
or service or (iv) for other reasons, then, for the purposes of computing
Operating Expenses, the amount for such item and for such period shall be deemed
to be increased by an amount equal to the additional costs and expenses which
would reasonably have been incurred during such period by Landlord if it had at
its own expense furnished such item of work or services to such portion of the
building or to such tenant.
B0 1 For each Escalation Year commencing during the term of this lease,
Tenant shall pay ("Tenant's Operating Payment") to Landlord, as additional rent,
a sum equal to Tenant's Proportionate Share of the amount by which Operating
Expenses for such Escalation Year exceeds the Operating Expenses for the Base
Year.
2 Landlord shall furnish to Tenant, prior to the commencement of
each Escalation Year, a written statement setting forth Landlord's estimate of
Tenant's Operating Payment for such Escalation Year, and the method of
calculation of Tenant's Operating Payment for such Escalation Year. Tenant shall
pay to Landlord on the first day of each month during such Escalation Year an
amount equal to one-twelfth (1/12th) of Landlord's estimate of Tenant's
Operating Payment for such Escalation Year. If, however, Landlord shall furnish
any such estimate for an Escalation Year subsequent to the commencement thereof,
then (a) until the first day of the month (or if such estimate is provided after
the tenth (10th) day of the month, then the second month) following the month in
which such estimate is furnished to Tenant, Tenant shall pay to Landlord on the
first day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Paragraph B in respect of the last month of the preceding
Escalation Year; (b) promptly after such estimate is furnished to Tenant or
together therewith, Landlord shall give notice to Tenant stating whether the
installments of Tenant's Operating Payment previously made for such Escalation
Year were greater or less than the installments of the Tenant's Operating
Payment to be made for such Escalation Year in accordance with such estimate,
and (i) if there shall be a deficiency, Tenant shall pay the amount thereof
within twenty (20) days after demand therefor, or (ii) if there shall have been
an overpayment, Landlord shall either refund to Tenant the amount thereof or
permit Tenant to credit the amount thereof against subsequent payments under
this lease, or if the term of this lease shall have expired and no further
amounts are owed from Tenant to Landlord, refund such overpayment to Tenant
within twenty (20) days following delivery of such statement; and (c) on the
first day of the month following the month in which such estimate is furnished
to Tenant, and monthly thereafter throughout the remainder of such Escalation
Year, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12th) of
Tenant's Operating Payment shown on such estimate. Landlord may at any time or
from time to time (but not more than twice with respect to any Escalation Year)
furnish to Tenant a revised statement of Landlord's estimate of Tenant's
Operating Payment for such Escalation Year, and in such case, Tenant's Operating
Payment for such Escalation Year shall be adjusted and paid or refunded, as the
case may be, substantially in the same manner as provided in the preceding
sentence.
<PAGE>
3 After the end of each Escalation Year Landlord shall furnish to
Tenant a reasonably detailed statement ("Landlord's Statement") for such
Escalation Year. Each such year-end Landlord's Statement shall be accompanied by
a computation of Operating Expenses for the building prepared by a certified
public accountant or managing agent designated by Landlord from which Landlord
shall make the computation of Operating Expenses hereunder. If the Landlord's
Statement shall show that the sums paid by Tenant under this Section exceeded
Tenant's Operating Payment paid by Tenant for such Escalation Year, Landlord
shall either promptly refund to Tenant the amount of such excess or permit
Tenant to credit the amount of such excess against subsequent payments under
this Section; and if the Landlord's Statement for such Escalation Year shall
show that the sums so paid by Tenant were less than Tenant's Operating Payment
paid by Tenant for such Escalation Year, Tenant shall pay the amount of such
deficiency within twenty (20) days after demand therefor.
4 If the Commencement Date or the Expiration Date shall occur on a
date other than January 1 or December 31, respectively, any additional rent
under this Article for the Escalation Year in which such Commencement Date or
Expiration Date shall occur shall be apportioned in that percentage which the
number of days in the period from the Commencement Date to December 31 or from
January 1 to the Expiration Date, as the case may be, both inclusive, shall bear
to the total number of days in such Escalation Year. In the event of a
termination of this lease, any additional rent under this Article shall be paid
or adjusted within thirty (30) days after submission of a Landlord's Statement.
In no event shall fixed rent ever be reduced by operation of this Article and
the rights and obligations of Landlord and Tenant under the provisions of this
Article with respect to any additional rent shall survive the termination of
this lease.
C0 1 Landlord's failure to render Landlord's Statements with respect to
any Escalation Year shall not prejudice Landlord's right to thereafter render a
Landlord's Statement with respect thereto or with respect to any subsequent
Escalation Year. Nothing herein contained shall restrict Landlord from issuing
Landlord's Statements at any time there is an increase in Operating Expenses
during any Escalation Year or any time thereafter.
2 Each Landlord's Statement shall be conclusive and binding upon
Tenant unless within one hundred eighty (180) days after receipt of such
Landlord's Statement Tenant shall notify Landlord that it disputes the
correctness of Landlord's Statement. Tenant recognizes and agrees that
Landlord's books and records, and those of Landlord's agents with respect to the
operation of the land and building are confidential, that, except as
specifically provided herein, Tenant shall have no right to inspect the same and
that any disclosure or dissemination of such confidential information by Tenant
or Tenant's accountant shall be a material default under this lease. Upon
request by Tenant, Landlord shall make available to Tenant or independent
certified public accountants selected by Tenant (but in no event to any
consultant paid on a contingency basis) for inspection Landlord's books and
records, for a period of one hundred fifty (150) days after the delivery of such
Tenant's dispute notice, solely to the extent necessary to verify the
computations of Operating Expenses for the relevant Escalation Year set forth in
such Landlord's Statement. Such books and records shall be made available for
inspection by such accountants, upon reasonable prior notice, during business
hours at a location in the Borough of Manhattan designated by Landlord.
<PAGE>
If Tenant shall dispute the correctness of Landlord's Statement as aforesaid,
and the parties shall not be able to resolve such dispute within one hundred
fifty (150) days after the giving of such Tenant's dispute notice, then either
party may refer the matter or matters in dispute to an independent certified
public accountant selected by Landlord and reasonably approved by Tenant. In the
event the determination by such accountant shall indicate that Landlord's
determination of the Operating Expenses for the building is greater than seven
and one-half (7 1/2%) percent in excess of the Operating Expenses for the
building applicable to such Escalation Year as finally determined, the amount of
the overcharge to Tenant for such Escalation Year along with interest thereon at
the Expense Interest Rate, calculated from the date of Tenant's full payment
thereof, shall be refunded to Tenant along with the reasonable, out-of-pocket
cost to Tenant of such inspection of Landlord's books and records (in no event
to exceed $3,000.00). Notwithstanding the giving of such notice by Tenant and
pending the resolution of any such dispute, Tenant shall pay to Landlord when
due the amount shown on any such Landlord's Statement as provided in this
Article, but such payment shall be without prejudice to Tenant's rights
hereunder. The obligations of the parties under this Section shall survive the
expiration or earlier termination of this lease, subject to the time periods
herein set forth.
41 AMENDING ARTICLE 11:
Notwithstanding the provisions of Article 11, and in modification and
amplification thereof:
A0 Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this lease, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the prior
written consent of Landlord in each instance, subject to the terms of this
Article 41. If Tenant's interest in this lease is assigned, whether or not in
violation of the provisions of this lease, Landlord may collect rent from the
assignee; if the demised premises or any part thereof are sublet to, or occupied
by, or used by, any person other than Tenant, whether or not in violation of
this lease, Landlord, .after default by Tenant under this lease and expiration
of Tenant's time, if any, to cure such default, may collect rent from the
subtenant, user or occupant. In either case, Landlord shall apply the net amount
collected to the rents reserved in this lease, but neither any such assignment,
subletting, occupancy, nor use, nor any such collection or application shall be
deemed a waiver of any terms, covenant or condition of this lease or the
acceptance by Landlord of such assignee, subtenant, occupant or user as a
tenant. The consent by Landlord to any assignment, subletting, occupancy or use
shall not relieve Tenant from its obligation to obtain the express prior written
consent of Landlord to any further assignment, subletting, occupancy or use for
which Landlord's consent is required hereunder. The listing of any name other
than Tenant's on any door of the demised premises, or on any directory, or on
any elevator in the building, or otherwise, shall not operate to vest in the
party so named, any right or interest in this lease or in the demised premises,
or be deemed to constitute, or serve as a substitute for, any prior written
consent of Landlord required under this Article. Tenant agrees to pay to
Landlord any reasonable, out-of-pocket counsel fees (not to exceed $2,000.00 on
any individual transaction) incurred by Landlord in connection with any proposed
assignment of Tenant's interest in this lease or any proposed subletting of the
demised premises or any part thereof. Neither any assignment of Tenant's
interest
<PAGE>
in this lease nor any subletting, occupancy or use of the demised premises or
any part thereof by any person other than Tenant, nor any collection of rent by
Landlord from any person other than Tenant as provided in this Paragraph A, nor
any application of any such rent as aforementioned as provided in this Paragraph
A, shall in any circumstances relieve Tenant of Tenant's obligations fully to
observe and perform the terms, covenants and conditions of this lease on
Tenant's part to be observed and performed.
B0 If Tenant shall desire to assign this lease or to sublet the demised
premises, Tenant shall submit to Landlord a written request (the "A/S Request")
for Landlord's consent to such assignment or subletting, which request shall
contain or be accompanied by the following information: (i) the name and address
of the proposed assignee or subtenant; (ii) a duplicate original or photocopy of
the executed assignment agreement or sublease; (iii) the nature and character of
the business of the proposed assignee or subtenant and its proposed use of the
demised premises; and (iv) banking, financial and other credit information with
respect to the proposed assignee or subtenant reasonably sufficient to enable
Landlord to determine the financial responsibility of the proposed assignee or
subtenant.
C0 Landlord shall not unreasonably withhold or delay beyond fourteen (14)
days its consent to the proposed assignment or subletting of the demised
premises, provided that Tenant is not then in default under this lease, provided
that the following further conditions shall be fulfilled:
1 The proposed subtenant or assignee shall use the demised premises
only for the use permitted hereunder and not for any Prohibited Use;
2 The subletting or assignment shall be to an entity whose occupancy
will be in keeping with the dignity and character of the then use and occupancy
of the building and whose occupancy and use would not be objectionable to
typical New York City office or retail tenants renting space in similar
buildings or more hazardous than that of Tenant herein or impose any material
additional burden upon Landlord in the operation of the building;
3 Tenant shall not advertise or openly promote any space to the
general public in which the name or address of Landlord, its managing agent, or
any principal or partner thereof is utilized, or which states a rental rate or
which demeans the dignity of the building;
4 The proposed sublessee or assignee shall not be a tenant,
subtenant, occupant or assignee of any premises in the building, or a party who
actively negotiated with Landlord or Landlord's agent (directly or through a
broker) with respect to space in the building during the six (6) months
immediately preceding Tenant's request for Landlord's consent, unless no
comparable space is then available for leasing by Landlord in the building;
5 Tenant shall reimburse Landlord on demand for any reasonable legal
costs incurred in connection with the granting of any requested consent, not to
exceed $2,000.00 for any individual request;
<PAGE>
6 In case of a subletting, it shall be expressly subject to all of
the obligations of Tenant under this lease and the further condition and
restriction that the sublease shall not be assigned, encumbered or otherwise
transferred or the subleased premises further sublet by the sublessee in whole
or in part, or any part thereof suffered or permitted by the sublessee to be
used or occupied by others, without the prior written consent of Landlord in
each instance; and
7. There shall be no more than six (6) permitted occupants inclusive
of Tenant on any floor of the demised premises.
D0 No permitted or consented to assignment or subletting shall be
effective or valid for any purpose whatsoever unless and until a counterpart of
the assignment or a counterpart or reproduced copy of the sublease shall have
been first delivered to the Landlord, and, in the event of an assignment, the
Tenant shall deliver to Landlord a written agreement executed and acknowledged
by the Tenant and such assignee wherein such assignee shall assume jointly and
severally with Tenant the due performance of this lease on Tenant's part to be
performed to the full end of the term of this lease notwithstanding any other or
further assignment.
E0 Subject to the terms of Section H of this Article, any transfer by
operation of law or otherwise, of Tenant's interest in this lease or of a fifty
(50%) percent or greater interest in Tenant (whether stock, voting interest,
partnership interest or otherwise) shall be deemed an assignment of this lease
for purposes of this Article, except that the transfer of the outstanding
capital stock of any corporate tenant shall be deemed not to include the sale of
such stock by persons or parties through the "over-the-counter-market" or
through any recognized stock exchange, other than those deemed "insiders" within
the meaning of the Securities Exchange Act of 1934, as amended.
F0 Neither any assignment of Tenant's interest in this lease nor any
subletting, occupancy or use of the demised premises or any part thereof by any
person other than Tenant, nor any collection of rent by Landlord from any person
other than Tenant as provided in this Article, nor any application of any such
rent as provided in this Article shall, in any circumstances, relieve Tenant of
its obligations fully to observe and perform the terms, covenants and conditions
of this lease on Tenant's part to be observed and performed.
G0 Notwithstanding anything to the contrary contained herein, if Landlord
shall consent to any assignment or subletting, for which consent is required
hereunder, and Tenant shall either (i) receive any consideration from its
assignee (other than a successor corporation) in connection with the assignment
of this lease, Tenant shall pay over to Landlord, as additional rent,
thirty-three and one-third (33-1/3%) percent of so much, if any, of such
consideration (including, without limitation, sums designated by the assignee as
paid for the purchase of Tenant's property in the demised premises, less the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns, or if Tenant does not file such returns, on
the same basis as carried on Tenant's books) as shall exceed the brokerage
commissions and attorneys' fees and disbursements reasonably incurred by Tenant
for such assignment or (ii) sublet the demised premises or any portion thereof
to anyone for rents, additional charges or other consideration (including,
without limitation, sums designated by the subtenant as paid for the purchase of
Tenant's property
<PAGE>
in the demised premises, less the then net unamortized or undepreciated cost
thereof determined on the basis of Tenant's federal income tax returns or, if
Tenant does not file such returns, on the same basis as carried on Tenant's
books) which for any period shall exceed the rents payable for the subleased
space under this lease for the same period, Tenant shall pay Landlord, as
additional rent, thirty-three and one-third (33-1/3%) percent of such excess
less brokerage commissions and attorneys' fees and disbursements reasonably
incurred by Tenant for such subletting. All sums payable to Landlord pursuant to
this Paragraph G shall be paid on the date or dates such sums are payable to
Tenant by the subtenant or assignee.
H0 1 Tenant may, without Landlord's consent, but upon not less than
fifteen (15) days' prior written notice to Landlord, permit any corporation
which controls, is controlled by, or is under common control with Tenant (herein
referred to as a "related corporation") to take an assignment of this lease or
sublet all or part of the demised premises for any of the purposes permitted to
Tenant, subject however to compliance with Tenant's obligations under this
lease, provided that (i) Tenant shall not be in default in the performance of
any of its obligations under this lease, beyond the expiration of applicable
notice and cure periods, if any, provided herein, and (ii) prior to such
assignment or subletting, Tenant furnishes Landlord with the name of any such
related corporation, together with a certification of Tenant and such other
proof as Landlord may reasonably request from time to time, that such subtenant
or assignee is a related corporation of Tenant and continues to remain such
during the term hereof. Such subletting or assignment shall not be deemed to
vest in any such related corporation any right or interest in this lease or the
demised premises nor shall it relieve, release, impair or discharge any of
Tenant's obligations hereunder. For the purposes hereof, "control" shall be
deemed to mean ownership of not less than fifty (50%) percent of all of the
voting stock of such corporation or not less than fifty (50%) percent of all of
the legal and equitable interest in any other business entities.
2 Tenant may, without Landlord's consent, but upon not less than
fifteen (15) days' prior written notice to Landlord, assign or transfer its
entire interest in this lease and the leasehold estate hereby created to a
successor corporation of Tenant (as hereinafter defined); provided, however,
that (i) Tenant shall not be in default in any of the terms of this lease beyond
the expiration of applicable notice and cure periods, (ii) the proposed
occupancy shall not impose a material extra burden upon the building equipment
or building services and (iii) the proposed assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to the service of process in, and the jurisdiction of, the courts of New York
State. A "successor corporation", as used in this Paragraph, shall mean (a) a
corporation into which or with which Tenant, its corporate successors or
assigns, is merged or consolidated, in accordance with applicable statutory
provisions for the merger or consolidation of corporations, provided that by
operation of law or by effective provisions contained in the instruments of
merger or consolidation, the liabilities of the corporations participating in
such merger or consolidation are assumed by the corporation surviving such
merger or consolidation, or (b) a corporation acquiring this lease and the term
hereof and the estate hereby granted, the goodwill and all or substantially all
of the other property and assets or all of the capital stock of Tenant, its
corporate successors or assigns, and assuming all or substantially all of the
liabilities of Tenant, its corporate successors and assigns, or (c) any
corporate successor to a successor corporation becoming such by either of the
methods
<PAGE>
described in subdivisions (a) and (b) above; provided that (x) such merger or
consolidation, or such acquisition and assumption, as the case may be, is for a
good business purpose and not principally for the purpose of transferring the
leasehold estate created hereby, and (y) immediately after giving effect to any
such merger, consolidation, acquisition and/or assumption, as the case may be,
the corporation surviving such merger or created by such consolidation or
acquiring such assets and assuming such liabilities, as the case may be, shall
have assets, capitalization and a net worth, as determined in accordance with
generally accepted accounting principles and certified to Landlord by an
independent certified public accountant, at least equal to Tenant's Minimum Net
Worth (hereinafter defined). The acquisition by Tenant, its corporate successors
or assigns, of all or substantially all of the assets, together with the
assumption of all or substantially all of the obligations and liabilities of any
corporation, shall be deemed to be a merger for the purposes of this Article.
42 SUPPLEMENTING ARTICLE 3:
A0 Landlord's consent shall not be required for any renovations,
additions, improvements, alterations, installations or improvements ("Tenant's
Changes") which Tenant's Changes do not affect any area outside of the demised
premises and do not affect the building systems or the structural portions of
the building. All other Tenant's Changes shall require the prior written consent
of Landlord thereto, which Landlord agrees not to unreasonably withhold or
delay. In granting its consent to any Tenant's Changes, Landlord may impose such
reasonable and proportionate conditions (as to guarantee of completion, payment,
restoration and otherwise including, the requirement of Tenant to post a bond to
insure the completion of Tenant's Changes) as Landlord may reasonably require;
provided, however, that, so long as Tenant maintains the Minimum Net Worth (as
hereinafter defined), no such conditions shall apply. In no event shall Landlord
be required to consent to any Tenant's Change which would adversely affect any
part of the building outside of the demised premises (except for common areas
which exclusively service the demised premises) or would adversely affect the
proper functioning of the mechanical, electrical, sanitary or other service
systems of the building. At the time Tenant requests Landlord's written consent
to any Tenant's Changes, Tenant shall deliver to Landlord detailed plans and
specifications therefor. Tenant shall pay to Landlord any actual, out-of-pocket
fees or expenses incurred by Landlord in connection with Landlord's submitting
such plans and specifications for any Tenant's Changes other than Tenant's
Initial Changes (hereinafter defined), if the work set forth therein shall be of
a type or manner of installation which would require filing with a governmental
body or effect the systems or structure of the building or would otherwise
reasonably require the review of a licensed construction engineer or architect,
to an architect or engineer or other licensed or qualified contractor selected
by Landlord for review or examination and/or for supervision during performance
of Tenant's Changes. Landlord's approval of any plans or specifications does not
relieve Tenant from the responsibility for the legal sufficiency and technical
competency thereof. Before commencement of any alterations, installations or
improvements, Tenant, at its expense, shall obtain the necessary consents,
authorizations, licenses, permits and certificates from all federal, state
and/or municipal authorities having jurisdiction over such work and, upon
completion, certificates of final approval thereof and shall deliver duplicates
of any of the foregoing to Landlord, upon request. Except as hereinafter
provided, Tenant at its expense, shall obtain all necessary asbestos
<PAGE>
certifications and comply with the New York City Asbestos Control Law (Local Law
76 of 1985), as same may be amended, including the removal of any asbestos
containing materials. Landlord agrees to obtain and deliver to Tenant original
ACP-5 Certifications in connection with each portion of the demised premises on
or before the applicable Delivery Date thereof. Notwithstanding anything in this
lease to the contrary, if during the term hereof the removal, encapsulation or
other remediation of asbestos or asbestos-containing materials determined to be
present in any area of the demised premises is required pursuant to any law,
then such encapsulation or other remediation shall be performed by Landlord to
the extent required by such law, at Landlord's expense, and any damage to the
demised premises by reason of such removal or encapsulation shall be repaired
and restored to building standard condition; provided, however, that
notwithstanding anything herein contained to the contrary, Tenant shall be
solely responsible for the removal of any asbestos or asbestos-containing
material required to be removed or remedied by applicable law or amendment to
applicable law which are installed or brought into the building and/or the
demised premises by or on behalf of Tenant or any party claiming through Tenant.
Nothing contained in the preceding sentence shall be deemed to vest upon Tenant
or any permitted occupant of the demised premises any right to install or bring
into the building or the demised premises any asbestos or asbestos-containing
material. During the period of any such removal, encapsulation or remediation by
Landlord, Landlord shall use reasonable efforts to minimize interference with
Tenant's business and if any asbestos or asbestos containing material is to be
removed from any portion of the demised premises following the Delivery Date for
such portion, then during the period when Landlord is removing such asbestos or
asbestos containing material and Tenant is unable to use, operate or perform
construction therein, the Free Fixed Rent Period applicable to such portion
shall be extended one (1) day for each day Landlord is performing such removal.
B0 Notwithstanding anything to the contrary set forth in this lease,
including, but not limited to, the foregoing provisions of this Article 42 and
Article 3, Tenant, in all events and at Tenant's sole cost and expense, shall
comply with all provisions of the Americans with Disabilities Act and any
successor law of like import then in force insofar as it relates to the demised
premises including, the performance of all Tenant's Changes, structural and
otherwise, foreseen and unforeseen in order so to comply.
C0 Tenant agrees to indemnify and save Landlord harmless from and against
any and all bills for labor performed and equipment, fixtures and materials
furnished to Tenant and applicable sales taxes thereon as required by New York
law and from and against any and all liens, bills or claims therefor or against
the demised premises or the building and from and against all losses, damages,
costs, expenses, suits and claims whatsoever in connection with Tenant's
Changes. The demised premises and the building shall at all times be free of
liens for labor and materials supplied or claimed to have been supplied.
D0 Tenant, at its expense, shall cause any Tenant's Changes consented to
by Landlord to be performed in compliance with all applicable requirements of
insurance bodies having jurisdiction and in such manner as not to materially
interfere with, delay or impose any additional expense upon the Landlord in the
maintenance or operation of the building and so as to maintain harmonious labor
relations in the building.
<PAGE>
E0 If the performance of Tenant's Changes shall unreasonably interfere
with the comfort and/or convenience of other tenants in the building, except for
Tenant's Initial Changes (which Tenant agrees to perform in a time efficient
manner so as to minimize interference with other tenants in the building) or
shall cause damage to or otherwise interfere with the occupancy of adjacent
buildings, Tenant shall upon Landlord's demand remedy or remove the condition or
conditions complained of.
F0 For the performance of Tenant's Changes, any alterations or
installations to the demised premises and any maintenance, cleaning and repair
obligations of Tenant, Tenant agrees to use only contractors and subcontractors
which shall be duly licensed and insured and experienced in the performance of
construction, maintenance and/or repair in first class office buildings in the
Borough of Manhattan and all such contractors and subcontractors and the
employees and agents thereof shall conform to Landlord's reasonable labor
regulations and shall not create any work stoppage, picketing or any other labor
disruption or dispute, and all such contractors and subcontractors shall carry
workman's compensation (as required by law) and general liability, personal and
property damage insurance in an amount of not less than $5,000,000.00 combined
single limit per occurrence.
G0 Promptly after the completion of any Tenant's Changes, Tenant, upon
Landlord's request, shall furnish to Landlord a complete set of "as-built" plans
and specifications.
H0 Landlord represents that as of the Commencement Date, the structural
portions of the building are in good working order and repair and Landlord
undertakes to maintain the structural portions of the building in good working
order and repair during the term hereof , except as same may otherwise be the
responsibility of Tenant hereunder.
I0 Landlord shall deliver the portions of the demised premises to Tenant
free from infestation by vermin and termites, and undertakes to keep the common
areas of the building free from infestation by vermin and termites during the
term hereof, unless same is caused by Tenant or its agents, employees or
contractors, and in any event Tenant shall be responsible for extermination
within the demised premises. Landlord agrees to maintain a service contract for
extermination of portions of the building including the demised premises for any
period that the existing occupant of the Basement Premises (hereinafter defined)
continues to use and occupy the Basement Premises.
43 BROKER:
Tenant and Landlord each represents and warrants to the other party that
it neither consulted nor negotiated with any broker or finder with regard to the
rental of the demised premises from Landlord other than Newmark & Company Real
Estate, Inc. Tenant and Landlord each agrees to indemnify and hold the other
party harmless from any damages, costs and expenses suffered by the indemnified
party by reason of any breach of the foregoing representation by the
indemnifying party.
44 LIMITATION OF LIABILITY:
<PAGE>
Tenant agrees that the liability of Landlord under this lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the demised premises, shall be limited to Landlord's interest in the building
and in no event shall Tenant make any claim against or seek to impose any
personal liability upon any general or limited partner of Landlord, or any
principal of any firm or corporation that may hereafter be or become the
Landlord.
45 INDEMNIFICATION AND INSURANCE:
A0 Except if caused by the negligence or willful misconduct of Landlord or
its agents, contractors or employees, Tenant shall indemnify and save harmless
Landlord and its agents against and from (i) any and all claims (a) arising from
(x) the conduct or management of the demised premises or of any business
therein, or (y) any work or thing whatsoever done, or any condition created in
or about the demised premises during the term hereof, or (b) arising from any
breach of the terms of this lease and any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors or subcontractors of any tier or invitees or
guests while such invitees or guests are within the demised premises, and (ii)
all costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon. Landlord shall indemnify and hold
harmless Tenant against and from any and all claims arising from any negligent
or otherwise wrongful act or omission of Landlord or any of its employees,
agents, invitees, visitors or contractors and all reasonable costs and expenses
incurred in connection with the management of the building or a breach of the
terms of this lease. If any claim, action or proceeding is made or brought
against either party, which claim, action or proceeding the other party shall be
obligated to indemnify such first party against, pursuant to the terms of this
lease, then, upon demand by the indemnified party, at its sole cost and expense,
shall resist or defend such claim, action or proceeding in the indemnified
party's name, if necessary, by such attorneys as the indemnified party shall
approve, which approval shall not be unreasonably withheld or delayed. Attorneys
for the indemnifying party's insurer which has not denied coverage shall hereby
be deemed approved for purposes of this Paragraph.
B0 Tenant shall secure and keep in full force and effect throughout the
term hereof, at Tenant's sole cost and expense (i) Commercial General Liability
Insurance, written on an occurrence basis, to afford protection in such amount
as Landlord may determine and in no event less than $10,000,000 (which may be
satisfied under an umbrella policy as herein provided) combined single limit for
personal and bodily injury and death arising therefrom and Broad Form property
damage arising out of any one occurrence in, upon, adjacent to or in connection
with the demised premises or any part thereof, which insurance shall include
coverage for contractual liability (including the matters set forth in Paragraph
A above), owner's protective liability, independent contractor's liability and
completed operations liability; (ii) during the course of construction of any
Tenant's Changes and until completion thereof, Builder's Risk insurance on an
"all risk" basis (including collapse) on a completed value (non-reporting) form
for full replacement value covering the interests of Landlord and Tenant (and
their respective contractors and subcontractors) in all work incorporated in the
building and all materials and equipment in or about the demised premises; (iii)
Workers' Compensation Insurance, as required by law and (iv) such other
insurance in such amounts as
<PAGE>
Landlord may require from time to time. All such insurance shall contain only
such "deductibles" as Landlord shall reasonably approve. The minimum amounts of
insurance required under this Paragraph shall not be construed to limit the
extent of Tenant's liability under this lease. In addition, prior to any entry
upon the demised premises by Tenant or any of Tenant's employees, agents or
contractors, Tenant shall deliver or cause to be delivered to Landlord
certificates evidencing that all insurance required hereunder is in full force
and effect. Tenant shall have the right to insure and maintain the insurance
coverages set forth in this Paragraph under blanket insurance policies covering
other premises occupied by Tenant so long as such blanket policies comply as to
terms and amounts with the insurance provisions set forth in this lease;
provided that upon request, Tenant shall deliver to Landlord a certificate of
Tenant's insurer evidencing the portion of such blanket insurance allocated to
the demised premises.
C0 All such insurance shall be written in form and substance reasonably
satisfactory to Landlord by an insurance company in a financial size category of
not less than XII and with general policy holders' ratings of not less than A,
as rated in the most current available "Best's" insurance reports, or the then
equivalent thereof, and licensed to do business in New York State and authorized
to issue such policies. All policies of insurance procured by Tenant shall
contain endorsements providing that (a) such policies may not be reduced or
cancelled (including for non-payment of premium) or allowed to lapse with
respect to Landlord or materially changed or amended except after 45 days' prior
notice from the insurance company to Landlord, sent by certified mail, return
receipt requested; and (b) Tenant shall be solely responsible for the payment of
premiums therefor notwithstanding that Landlord or any other party is or may be
named as an additional insured. Duly executed certificates of insurance
(including endorsements and evidence of the waivers of subrogation required
pursuant to Paragraph E herein) shall be delivered to Landlord, within ten (10)
days following the Commencement Date, but in any event prior to the occupancy
thereof by Tenant or anyone claiming through or under Tenant. Each renewal or
replacement of a policy shall be so deposited at least 30 days prior to the
expiration of such policy. Tenant shall not carry any separate or additional
insurance concurrent in form or contributing in the event of any loss or damage
with any insurance required to be maintained by Tenant under this lease, and all
policies of insurance procured by Tenant shall be written as primary policies
not contributing with or in excess of coverage that Landlord may carry.
D0 All insurance procured by Tenant under this Article shall be issued in
the names and for the benefit of Landlord (and each member thereof in the event
Landlord is a partnership or joint venture to the extent Tenant has been
notified thereof) and Tenant, as their respective interests may appear, and
shall contain an endorsement that Landlord, although named as an additional
insured, nevertheless shall be entitled to recover under said policies for any
loss or damages occasioned to it, its agents, employees, contractors, directors,
shareholders, partners and principals (disclosed or undisclosed) by reason of
the negligence or tortious acts of Tenant, its servants, agents, employees and
contractors.
E0 Each party shall include in each of its insurance policies covering
loss, damage or destruction by fire or other casualty (insuring the building and
Landlord's property therein and the rental value thereof, in the case of
Landlord, and insuring Tenant's personal property and fixtures
<PAGE>
and business interruption insurance, in the case of Tenant) a waiver of the
insurer's right of subrogation against the other party or, if such waiver should
be unobtainable or unenforceable, (i) an express agreement that such policy
shall not be invalidated if the insured waives before the casualty the right of
recovery against any party responsible for a casualty covered by such policies,
or (ii) any other form of permission for the release of the other party. If such
waiver, agreement or permission shall cease to be obtainable without additional
charge, then if the other party shall so elect and shall pay the insurer's
additional charge therefor, such waiver, agreement or permission shall be
included in the policy, or the other party shall be named as an additional
insured in the policy, provided, however, that Tenant shall at no time be named
a loss payee under any of Landlord's insurance policies. Notwithstanding the
foregoing, any failure by Tenant as an additional insured promptly to endorse to
the order of Landlord any instrument for the payment of money under a policy of
which Landlord is the owner or original or primary insured shall be a default
under this lease.
F0 Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property
(including rental value or business interruption) occurring during the term
hereof and with respect and to the extent to which it is insured under a policy
or policies containing a waiver of subrogation or permission to release
liability or naming the other party as an additional insured, as provided in
Paragraph E above. If, notwithstanding the recovery of insurance proceeds by
either party for loss, damage or destruction of its property (or rental value or
business interruption), the other party is liable to the first party with
respect thereto or is obligated under this lease to make replacement, repair or
restoration or payment, then provided the first party's right of full recovery
under its insurance policies is not thereby prejudiced or otherwise adversely
affected, the amount of the net proceeds of the first party's insurance against
such loss, damage or destruction shall be offset against the second party's
liability to the first party therefor, or shall be made available to the second
party to pay for replacement, repair or restoration, as the case may be.
G0 The waiver of subrogation or permission for release referred to in
Paragraph E above shall extend to the agents of each party and its and their
employees. The releases provided for in Paragraph F above shall likewise extend
to such agents and employees, if and to the extent that such waiver or
permission is effective as to them. Nothing contained in Paragraphs E or F above
shall be deemed to impose upon either party any duty to procure or maintain any
of the kinds of insurance referred to therein except as otherwise required in
this Article. If Tenant shall fail to maintain insurance in effect as required
in this Article, the release by Tenant set forth in Paragraph F above shall be
in full force and effect to the same extent as if such required insurance
(containing a waiver of subrogation) were in effect.
H0 Landlord agrees that during the term of this lease, Landlord will
maintain fire insurance and other insurance coverage for the building (at full
replacement value) as required by the terms of the existing superior mortgage
(and the premiums therefor shall be included in Operating Expenses as provided
in Article 40 hereof), whether or not such mortgage shall then be in effect;
except that, if at any time, and from time to time, a lesser standard or
different forms of insurance policies (the "Alternative Policies") shall be (i)
approved by the superior lessor(s) and superior
<PAGE>
mortgagee(s), if any, and (ii) then commonly maintained by owners of comparable
buildings, then Landlord shall have the right, at Landlord's option, to carry
the Alternative Policies in lieu of the aforesaid. Landlord may carry any such
insurance under a blanket insurance policy covering other buildings owned or
leased by Landlord.
46 ELECTRIC CURRENT:
A0 Method of Furnishing Electric Current to the Demised Premises
Tenant shall make all arrangements with the public utility servicing the
building (the "Utility") for obtaining electricity directly from the Utility.
Tenant shall be responsible to the Utility for the payment of all charges for
electricity consumed by Tenant in the demised premises, including, without
limitation, for the use of Tenant's air conditioning facility, if any. All
meters, panel boards, wiring and other equipment which may be required to obtain
electricity from the Utility shall be installed and maintained by Tenant at its
expense, but Tenant shall be permitted to use the existing electrical equipment
servicing the demised premises. All electric current used in the operation of
the heating, ventilation and air-conditioning throughout the demised premises
(including fans and motors) shall be the obligation of Tenant. During such time
as Tenant shall occupy the entire rentable area of the building (other than the
garage space), Landlord shall permit Tenant to use the building's electrical
system to obtain electrical services from a public utility company other than
the company now servicing the building.
Interruption or curtailment of such service shall not constitute a
constructive or partial eviction nor entitle Tenant to any compensation or
abatement of rent, except for actual damage suffered by Tenant caused by
Landlord's negligence or willful misconduct. Tenant covenants and agrees that at
all times its use of electric current shall never exceed the capacity of the
existing feeders to the building or of the risers or wiring installation. Tenant
shall make no alteration or additions to the electrical equipment without the
prior written consent of Landlord, which consent Landlord agrees not to
unreasonably withhold or delay. Provided Tenant is not then in default under any
of the material or monetary terms of this lease, following the expiration of any
notice or cure periods provided hereunder, Landlord shall respond to such
request for consent to alterations or additions to the electrical equipment
("Tenant's Electrical Request") by Tenant named herein within ten (10) business
days following receipt of such Tenant's Electrical Request accompanied by all
information, plans and specifications reasonably required by Landlord in
connection therewith. In the event that Landlord shall fail to respond to any
such Tenant's Electrical Request within such ten (10) business day period
following delivery thereof and such Tenant's Electrical Request shall cite this
provision of this lease and state the time period for Landlord's response and
the specific result herein stated for Landlord's failure to timely respond,
Landlord's consent to such Tenant's Electrical Request shall be deemed granted.
B. General Conditions
1. Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity or character of
electric service is changed or is no
<PAGE>
longer available or suitable for Tenant's requirements. The building will be
equipped with electrical equipment and facilities sufficient to furnish electric
service (connected load) to the demised premises of up to eleven (11) watts per
useable square foot, inclusive of HVAC.
2. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to Tenant's floor(s)
or space (if less than an entire floor) or the capacity of the risers or wiring
installation in the building. Landlord represents that there are no existing
violations of record with respect to the electrical system servicing the
building Any riser or risers to supply Tenant's electrical requirements, upon
written request of Tenant but subject to the prior written approval of Landlord
in each instance, which approval shall not be unreasonably withheld, provided
the electrical service to other tenants is not adversely affected thereby, the
same will be installed by Tenant, at Tenant's sole cost and expense, the same
are necessary and will not cause permanent damage or injury to the building or
the demised premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expense or interfere
with or disturb other tenants or occupants.
47. ADDENDA TO ARTICLE 6 - REQUIREMENTS OF LAW:
Notwithstanding any provision of Article 6 to the contrary, Landlord shall
have the right (but not the obligation), upon notice to Tenant, to perform any
of Tenant's obligations which may arise under Article 6 during the term hereof,
the cost of which shall be paid by Tenant to Landlord, as additional rent
hereunder, within twenty (20) days after demand therefor.
48. BINDING EFFECT:
It is specifically understood and agreed that this lease is offered to
Tenant for signature by the managing agent or leasing agent of the building
solely in its capacity as such agent and subject to Landlord's acceptance and
approval, and that Tenant shall have affixed its signature hereto with the
understanding that such act shall not, in any way, bind Landlord or its agent
until such time as this lease shall have been approved and executed by Landlord
and delivered to Tenant.
49. AIR CONDITIONING:
All air conditioning equipment now or hereafter installed by Tenant in the
demised premises shall be either of the package air-cooled type or of a type
which is supplied by a cooling tower installed by Tenant on the roof of the
building in accordance with Section 61C of this lease, and shall service the
entire demised premises, window units being expressly prohibited, unless a
window unit may be necessary to adequately cool an area of the demised premises
which is not sufficiently cooled by Tenant's air conditioning system. Tenant
covenants and agrees to maintain said air conditioning equipment in good working
order at all times during the term of this lease, to perform all repairs thereto
and services, at Tenant's sole cost and expense and to make replacement of
parts, at Tenant's expense, as they become necessary. Tenant shall be required
to pay in accordance with Article 46 hereof for all electric energy necessary or
used in connection with air conditioning in the demised premises. Said air
conditioning equipment shall at all times be the sole property of Landlord and
<PAGE>
be surrendered to Landlord with the demised premises on the expiration or sooner
termination of this lease. If any air conditioning equipment exists in any
portion of the demised premises at the time of delivery thereof, Landlord shall
permit Tenant to use same in accordance with this Article and Tenant agrees to
accept such equipment in its then "as-is" condition, and Landlord makes no
warranty or representation in connection therewith.
50. AS-IS TENANT'S WORK; CONTRIBUTION:
A. Tenant acknowledges that it has inspected the demised premises and
agrees to accept possession thereof in its then "as-is" physical condition on
the date of tendering of possession thereto by Landlord, it being understood and
agreed that Landlord shall not except as otherwise specifically provided herein
be obligated to make any improvements, alterations or repairs to the demised
premises, except that Landlord shall perform the following work to each portion
of the demised premises: (i) demolish existing tenant installations; (ii) flash
patch floor to provide a carpetable surface; (iii) cap all pipes, which are
removed, back to core wall; (iv)replace missing fireproofing, if any; (v) remove
all floor covering; (vi) cut back all existing electrical conduit as per code;
(vii) deliver space in broom clean condition; and (viii) provided Tenant shall
have notified Landlord to such effect prior to the commencement of the
demolition of any portion of the demised premises, remove the existing air
conditioning units and ancillary duct work from said portion of the demised
premises. Landlord represents that as of the date hereof: (i) the HVAC,
electrical, mechanical and plumbing systems are currently in proper working
order, (ii) the roof and the basement are currently free from leaks; (iii) there
is no asbestos or asbestos containing materials in or about the demised
premises; (iv) the existing sprinkler system is in good working order and
complies with applicable code and has adequate water pressure for its current
configuration; (v) the existing life safety system is in good working order and
complies with applicable code; (vi) the existing lavatories are in good working
order and comply with applicable code; and (vii) the existing window glass is
not broken and all exterior windows are in good working order; and (viii) all
existing perimeter heating units are in good working order.
B. Tenant covenants and agrees, at its sole cost and expense, to promptly
commence the construction in and to each portion of the demised premises, other
than the Basement Premises (hereinafter defined), of a first-class office,
showroom and ancillary use installation of top quality, including all necessary
mechanical systems, air conditioning, fire safety systems, lighting fixtures,
duct work, fixtures and furnishings all having top quality materials,
installation and workmanship, at least equal to Tenant's (or Tenant's
affiliates') existing office and showroom space located at Carnegie Hall Tower
("Tenant's Initial Changes"), in accordance with the terms of this lease. It is
understood, however, that the appearance (and not the quality) of the
installations to the demised premises shall differ from those performed on such
premises at Carnegie Hall Tower in that there will be exposed brick surfaces,
open ceilings and other aesthetic differences of a similar nature. It shall be a
material default under this lease if Tenant shall fail to commence the
construction of Tenant's Initial Changes in any portion of the demised premises
within twenty-four (24) months following the Delivery Date of such portion or
shall thereafter fail to prosecute such work to completion with reasonable
diligence, except that, with respect to the fourth (4th) floor of the
<PAGE>
building, such twenty-four (24) month period shall not commence until such time
as the tendering of possession to Tenant of the Delayed Fourth Floor Premises.
C. 1. Tenant agrees that in addition to Tenant's Initial Changes, Tenant
may, as a Tenant's Change hereunder, at its sole cost and expense, subject to
reimbursement in accordance with this Section C, perform work, installations and
alterations in and to the common areas of the building in order to upgrade the
11th Avenue and 50th Street lobby areas in the building (the "Common Area Work")
in accordance with plans and specifications approved in advance by Landlord in
accordance with Article 42 hereof. Landlord and Tenant agree to mutually
cooperate with each other so that the plans, performance and completion of the
Common Area Work shall be reasonably satisfactory to each party. At the time
Tenant requests Landlord's written consent to the Common Area Work, Tenant shall
deliver to Landlord detailed plans and specifications therefor along with a
reasonable estimate of the total cost thereof. Provided Tenant is not then in
default under any of the material or monetary terms of this lease, following the
expiration of any notice or cure periods provided hereunder, Landlord shall
respond to such request for consent ("Tenant's Request") by Tenant named herein
within ten (10) business days following receipt of such Tenant's Request
accompanied by all information, estimates, plans and specifications reasonably
required by Landlord in connection therewith. In the event that Landlord shall
fail to respond to any such Tenant's Request within such ten (10) business day
period following delivery thereof and such Tenant's Request shall cite this
provision of this lease and state the time period for Landlord's response and
the specific result herein stated for Landlord's failure to timely respond,
Landlord's consent to such Tenant's Request shall be deemed granted.
2. So long as Tenant is not then in default under this lease, beyond
the expiration of applicable notice and cure periods, and Tenant shall submit to
Landlord reasonable documentation evidencing the cost of the Common Area Work
actually incurred by Tenant ("evidence of payment") and final lien waivers from
all vendors, mechanics, laborers and material men covering the Common Area Work,
Landlord shall reimburse Tenant named herein fifty (50%) percent of the cost of
the Common Area Work evidenced by the evidence of payment, but not more than
$100,000.00 (less any amounts expended by Landlord pursuant to the following
sentence), within sixty (60) days following request therefor along with such
final lien waivers and evidence of payment therefor. If Landlord shall fail to
make any such payment duly owing to Tenant pursuant to the preceding sentence
within such sixty (60) day period, then, from and after such period, interest at
the Expense Interest Rate shall accrue on any outstanding amount until same
shall be paid by Landlord. Landlord agrees at the request of Tenant named herein
to upgrade the existing elevator cabs, but, notwithstanding the foregoing, the
total aggregate amount expended by Landlord pursuant to this Section C and in
connection with the Common Area Work and the work to the elevator cabs shall in
no event exceed One Hundred Thousand and 00/100 ($100,000.00) Dollars and any
amounts in excess thereof shall be the sole responsibility of Tenant.
51. FIXED RENT; FREE FIXED RENT:
A. Tenant shall pay to Landlord, without notice or demand and without any
abatement, deduction or setoff whatsoever, in lawful money of the United States
of America, by check at
<PAGE>
Landlord's office or such other place as Landlord may designate, annual fixed
rent (herein sometimes referred to as the "fixed rent") as follows:
(i) An amount equal to the product of the SFA attributable to each
portion of the demised premises multiplied by $15.00; commencing, for each such
portion, on the date such portion of the demised premises is tendered for
delivery by Landlord to Tenant (with respect to each such portion, the "Delivery
Date") and ending on the day immediately preceding the fifth (5th) anniversary
of the Delivery Date for such portion;
(ii) An amount equal to the product of the SFA attributable to each
portion of the demised premises multiplied by $17.00; commencing on the fifth
(5th) anniversary of the Delivery Date for each such portion and ending on the
day immediately preceding the tenth (10th) anniversary of the Delivery Date for
each such portion; and
(iii) An amount equal to the product of the SFA attributable to each
portion of the demised premises multiplied by $19.00; commencing on the tenth
(10th) anniversary of the Delivery Date for each such portion and ending on the
Expiration Date.
all of which shall be payable in equal monthly installments in advance on the
first day of each and every calendar month during the term of this lease, except
that Tenant shall pay, upon the execution and delivery of this lease by Tenant,
the amount of $33,125.00 to be applied to the first installment of fixed rent
due under this lease. If the Commencement Date occurs on a day other than the
first day of a calendar month, the fixed rent for such calendar month shall be
prorated on the basis of the number of days of the lease term within such
calendar month, and the balance of the first month's fixed rent theretofore paid
shall be credited against the next monthly installment of fixed rent.
B. Provided Tenant is not then in default under the terms, covenants and
conditions of this lease, beyond the expiration of applicable notice and cure
periods provided hereunder, Tenant shall have the right to use and occupy the
demised premises free solely of fixed rent applicable to the portion of the
demised premises for which possession has been tendered to Tenant for the seven
(7) month period (the "Free Fixed Rent Period") commencing on the Delivery Date
thereof, except that Tenant shall pay to Landlord all other fixed and additional
rent and other charges payable hereunder (including, without limitation charges
payable pursuant to Article 46 of this lease for the furnishing to Tenant of
electric current) during the Free Fixed Rent Period. Except for the free fixed
rent allowance as herein provided, Tenant shall use and occupy the demised
premises during the Free Fixed Rent Period pursuant to all of the other terms,
covenants and conditions of this lease.
52. MISCELLANEOUS:
A. Without incurring any liability to Tenant, Landlord may permit access
to the demised premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshall or court officer entitled to, or
<PAGE>
reasonably purporting to be entitled to, such access for the purpose of taking
possession of, or removing, Tenant property or for any other lawful purpose (but
this provision and any action by Landlord hereunder shall not be deemed a
recognition by Landlord that the person or official making such demand has any
right or interest in or to this lease, or in or to the premises), or upon demand
of any representative of the fire, police, building, sanitation or other
Department of the city, state or federal governments.
B. No receipt of monies by Landlord from Tenant, after any reentry or
after the cancellation or termination of this lease in any lawful manner, shall
reinstate this lease; and after the service of notice to terminate this lease,
or after the commencement of any action, proceeding or other remedy, Landlord
may demand, receive and collect any monies due, and apply them on account of
Tenant obligations under this lease but without in any respect affecting such
notice, action, proceeding or remedy, except that if a money judgment is being
sought in any such action or proceeding, the amount of such judgment shall be
reduced by such payment.
C. If Tenant is in arrears in the payment of fixed rent or additional
rent, Tenant waives its right, if any, to designate the items in arrears against
which any payments made by Tenant are to be credited and Landlord may apply any
of such payments to any such items in arrears as Landlord, in its sole
discretion, shall determine, irrespective of any designation or request by
Tenant as to the items against which any such payments shall be credited.
D. No payment by Tenant nor receipt by Landlord of a lesser amount than
may be required to be paid hereunder shall be deemed to be other than on account
of any such Payment, nor shall any endorsement or statement on any check or any
letter accompanying any check tendered as payment be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such payment due or pursue any other
remedy in this lease provided.
E. If in this lease it is provided that Landlord's consent or approval as
to any matter will not be unreasonably withheld, and it is established by a
court or body having final jurisdiction thereover that Landlord has been
unreasonable, the only effect of such finding shall be that Landlord shall be
deemed to have given its consent or approval; but Landlord shall not be liable
to Tenant in any respect for money damages by reason of withholding its consent,
unless it shall have been judicially determined that Landlord acted maliciously
or in bad faith in withholding such consent or approval.
F. In every case in which Tenant is required by the terms of this lease to
pay to Landlord a sum of money and payment is not made within seven (7) days
after notice thereof to Tenant, interest shall be payable on such sum or so much
thereof as shall be unpaid from the date it becomes due until it is paid. Such
interest shall be at an annual rate which shall be two (2) percentage points
above the prime commercial lending rate of Citibank, N.A., charged to its
customers of highest credit standing for ninety (90) day unsecured loans, in
effect from time to time, but in no event more than the highest rate of interest
which at such time shall be permitted under the laws of the State of New York.
<PAGE>
G. Intentionally omitted.
H. 1. Supplementing the provisions of Article 34 hereof, Landlord will
deposit said security in an interest bearing account and unless paid or applied
for the use or rental of the demised premises upon default of Tenant as
hereinabove provided, Landlord will deliver or cause to be delivered to Tenant,
such interest as is allowed on said account at the end of the term, less one
(1%) percent per annum administration expense allowed by law applicable to any
cash security to be deposited in accordance with Paragraph 4 of this Section.
2. If Landlord shall use, apply or retain the whole or any part of
the security as provided in Article 34, Tenant shall, upon demand by Landlord,
restore the amount so used, applied or retained within ten (10) business days
after demand is made therefor.
3. In lieu of the cash security provided for in Article 34 hereof
and this Section H, Tenant may deliver to Landlord, as security pursuant to said
Article, an irrevocable, clean, commercial letter of credit (the "Letter") in
the amount then required pursuant to this lease (the "Security Deposit Amount"),
issued by a "money center" bank which is authorized by the State of New York to
conduct banking business in New York State and is a member of the New York
Clearing House Association, which shall permit Landlord (a) to draw thereon up
to the full amount of the credit evidenced thereby in the event of any default
by Tenant in the terms, provisions, covenants or conditions of this lease or (b)
to draw the full amount thereof to be held as cash security pursuant to said
Article if for any reason the Letter is not renewed within sixty (60) days prior
to its expiration date. The Letter (and each renewal thereof) shall (i) be for a
term of not less than one (1) year (except that the last Letter shall be for a
term expiring sixty (60) days after the Expiration Date); (ii) expressly provide
for the issuing bank to notify Landlord in writing not less than sixty (60) days
prior to its expiration as to its renewal or non-renewal, as the case may be,
and if not so renewed each year (or later period of expiration) shall be
immediately available for Landlord to draw up to the full amount of such credit
(to be held as cash security pursuant to said Article 34); (iii) be fully
transferable by the beneficiary thereof (and its successors and assigns) without
charge; and (iv) be in form and substance approved by Landlord. Not less than
forty-five (45) days prior to the expiration date of each Letter (and every
renewal thereof), Tenant shall deliver to Landlord a renewal or new Letter
subject to all of the conditions aforesaid, all to the intent and purposes, that
a Letter in the amount of the Security Deposit Amount shall be in effect during
the entire term of this lease. In the event Landlord applies or retains any
portion or all of the proceeds of the Letter, Tenant shall within five (5)
business days restore the amount so applied or retained by causing the bank
issuing the then Letter to issue an amendment thereto, so that, at all times,
the amount of the Letter which may be drawn upon shall be the Security Deposit
Amount. Failure by Tenant to comply with the provisions of this Article shall be
deemed a material default hereunder entitling Landlord to exercise any and all
remedies as provided in this lease for default in the payment of fixed rent and,
to draw on the existing Letter up to its full amount.
4. Provided Tenant is not then in default under the terms of this
lease, beyond the expiration of applicable notice and cure periods provided
hereunder, then, upon payment by
<PAGE>
Tenant of the first installment of fixed rent due following the Free Fixed Rent
Period set forth in Section B of Article 51 hereof, with respect to the portion
of the demised premises delivered to Tenant on the Commencement Date, the
security deposit required under this Article shall, subject to Section H.5 of
this Article, be reduced to $0.00.
5. In the event that the net worth of Tenant as indicated by
financial statements prepared in accordance with generally accepted accounting
principles consistently applied, prepared and certified as correct by an
independent certified public accountant (which statements shall be delivered to
Landlord upon request), indicate that Tenant has a net worth of less than
$30,000,000.00 (the "Minimum Net Worth"), then thereafter the security required
to be maintained by Tenant under this lease shall be increased by an amount
equal to the fixed annual rent payable under this lease, as such fixed annual
rent shall be increased pursuant to Article 51 hereof.
I. Intentionally Omitted.
J. 1. In amplification of Article 7 hereof, this lease, and all rights of
Tenant hereunder, are and shall be, subject and subordinate, in all respects to
all mortgages (collectively the "Mortgage") now or hereafter made covering the
building and the lien created thereby and to each and every advance made or
hereafter to be made under the Mortgage, and to all renewals, modifications,
spreaders, consolidations, replacements and extensions thereof, including any
increase in the principal sum secured thereby, and any increase in the rate of
interest provided therein, and to each and all of the rights of the respective
mortgagee thereunder. With respect to the existing mortgage covering the
building, this Paragraph shall be self-operative and no further instrument of
subordination shall be required. In confirmation of any subordination under this
Section J, Tenant shall promptly execute and deliver any certificate that any
such mortgagee may reasonably request, but not more frequently than twice in any
eighteen (18) month period. To the extent not so provided by applicable law, in
the event of the enforcement by such mortgagee of the remedies provided for by
law or by the Mortgage, if such mortgagee or any successors or assigns of such
mortgagee shall, at its or their sole option, succeed to the interest of
Landlord under this lease whether through possessory or foreclosure action or a
deed in lieu of foreclosure and this lease shall not be terminated or affected
by such foreclosure or any such proceedings, Tenant shall attorn to and
recognize such mortgagee (or its successors or assigns) as its landlord upon the
terms, covenants, conditions and agreements contained in this lease to the same
extent and in the same manner as if this lease was a direct lease between such
mortgagee (or its successors or assigns) and Tenant, except that such mortgagee
(or its successors or assigns), whether or not it shall have succeeded to the
interest of Landlord under this lease, shall not (a) have any liability for
refusal or failure to perform or complete any work required to be performed by
Landlord under this lease or any workletter annexed hereto, to prepare the
demised premises for occupancy in accordance with the provisions of this lease,
(b) be liable for any act, omission or default of any prior landlord under this
lease, (c) be subject to any offsets, claims or defenses which shall have
heretofore accrued to Tenant against any prior landlord under this lease, and
(d) be bound by any rent or additional rent which Tenant might have paid to any
prior landlord for more than one (1) month in advance except as otherwise
provided in the Mortgage.
<PAGE>
2. Landlord agrees that it shall obtain and deliver to Tenant as to
the present superior mortgage covering the real property of which the demised
premises form a part on or before the expiration of the Free Fixed Rent Period,
and thereafter as to any future superior mortgage, a non-disturbance agreement
in form and substance customarily adopted by said mortgagee. Tenant agrees as a
condition to the delivery of said non-disturbance agreement to (i) execute and
deliver to such mortgagee a subordination and attornment agreement in form and
substance customarily adopted by such mortgagee and (ii) reimburse Landlord for
all expenses charged by such mortgagee or its legal counsel in connection with
obtaining and delivering any such agreements. including reasonable legal
expenses.
K. Tenant shall not cause or permit any Hazardous Materials (hereinafter
defined) to be used, stored, transported, released, handled, produced or
installed in, on or from the demised premises or the building. "Hazardous
Materials", as used herein, shall mean any flammables, explosives, radioactive
materials, hazardous wastes, hazardous and toxic substances or related
materials, asbestos or any material containing asbestos, or any other substance
or material included in the definition of "hazardous substances", "hazardous
wastes", "hazard materials", "toxic substances", "contaminants" or any other
pollutant, or otherwise regulated by any Federal, state or local environmental
law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
violation of any of the foregoing provisions of this Paragraph, Landlord may,
without notice and without regard to any grace period contained herein, take all
remedial action deemed necessary by Landlord to correct such condition and
Tenant shall reimburse Landlord for the cost thereof, upon demand, as additional
rent. The provisions of this Paragraph shall not prohibit Tenant from
maintaining customary and normal office equipment and supplies provided such
items are used, stored and safeguarded as required and only in quantities
permitted by applicable law and insurance bodies.
L. Intentionally Omitted.
M. Intentionally Omitted.
N. Landlord will not be required to furnish any services, including window
or other cleaning services, except as otherwise expressly provided in this
lease. Tenant shall deal directly with the public utility servicing the building
for all services not specifically the obligation of Landlord hereunder. Tenant,
at its sole cost and expense, shall clean and maintain all windows in or about
the demised premises, except that Landlord agrees to clean the existing windows
and replace any broken glass not caused by Tenant or its contractors, employees
or agents, on one (1) occasion, at Tenant's request, and provided Landlord shall
be permitted reasonable access by Tenant, prior to Tenant's initial move-in to
the demised premises. Notwithstanding anything in this lease to the contrary,
Landlord shall maintain, repair, clean and provide snow removal to the sidewalk
adjacent to the building, provided Tenant remains liable for repairs to the
sidewalk occasioned by the conduct or omissions of Tenant, its contractors,
employees or agents. Landlord
<PAGE>
shall maintain the lobby areas in good working order during the term, including
ordinary maintenance and repairs and repainting, if necessary, and if the lobby
areas shall be refurbished, Landlord shall maintain same in a manner
commensurate with the then condition thereof. Landlord shall maintain the
existing perimeter heating units in the demised premises in good working order
during the term hereof.
O. If the Expiration Date or the date of sooner termination of this lease
shall fall on a day which is not a business day, then Tenant's obligations under
Articles 3 and 22 hereof shall be performed on or prior to the immediately
preceding business day. Tenant expressly waives, for itself and for any person
claiming through or under Tenant, any rights which Tenant or any such person may
have under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the provisions of this lease. Tenant acknowledges that possession of the demised
premises must be surrendered to Landlord on the Expiration Date or the date of
sooner termination of this lease. The parties recognize and agree that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the demised premises will be extremely substantial, will exceed
the amount of the monthly installments of the fixed rent and additional rent
payable hereunder and will be impossible to accurately measure. Tenant agrees
that if possession of the demised premises is not surrendered to Landlord on the
Expiration Date (or sooner termination of this lease), in addition to any other
rights or remedies Landlord may have hereunder or at law, and without in any
manner limiting Landlord's right to demonstrate and collect any damages suffered
by Landlord, Tenant hereby indemnifies Landlord against liability arising from
Tenant's failure to surrender the demised premises as provided herein, including
any claims made by any succeeding tenant or prospective tenant founded upon
delay in obtaining possession of the demised premises and Tenant shall pay to
Landlord on account of use and occupancy of the demised premises for each month
and for each portion of any month during which Tenant holds over in the demised
premises after the Expiration Date (or sooner termination of this lease) a sum
equal to one hundred fifty (150%) percent of the aggregate of that portion of
the fixed rent and additional rent which was payable under this lease during the
last month of the term. Nothing herein contained shall be deemed to permit
Tenant to retain possession of the demised premises after the Expiration Date
(or sooner termination of this lease) or to limit in any manner Landlord's right
to regain possession of the demised premises through summary proceedings, or
otherwise, and no acceptance by Landlord of payments from Tenant after the
Expiration Date shall be deemed to be other than on account of the amount to be
paid by Tenant in accordance with the provisions of this Paragraph. The
provisions of this Paragraph shall survive the Expiration Date.
P. This lease contains the entire agreement between the parties and all
prior negotiations and agreements are merged into this lease. This lease may not
be changed, modified, terminated or discharged, in whole or in part, nor any of
its provisions waived except by a written instrument which (i) expressly refers
to this lease, (ii) is executed by the party against whom enforcement of the
change, modification, termination, discharge or waiver is sought and (iii) is
permissible under all mortgages affecting the real property of which the demised
premises are a part and any underlying leases.
<PAGE>
Q. Tenant expressly acknowledges that neither Landlord nor Landlord's
agents has made or is making, and Tenant, in executing and delivering this
lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
lease, and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth in this lease.
R. Any apportionments or prorations of rent to be made under this lease
shall be computed on the basis of a 360 day year, with 12 months of 30 days
each.
S. This lease shall be governed in all respects by the laws of the State
of New York. Tenant hereby specifically consents to jurisdiction in the State of
New York in any action or proceeding arising out of this lease and/or the use
and occupation of the demised premises. If Tenant at any time after date of
execution hereof or during the term hereof shall not be a New York partnership
or a New York corporation or a foreign corporation qualified to do business in
New York State, Tenant shall designate in writing, an agent in New York County
for service under the laws of the State of New York for the entry of a personal
judgment against Tenant. Tenant by notice to Landlord shall have the right to
change such agent provided that at all times there shall be an agent in New York
County for service. In the event of any revocation by Tenant of such agency,
such revocation shall be void and have no force and effect unless and until a
new agent has been designated for service and Landlord notified to such effect.
If any such agency designation shall require a filing in the office of the Clerk
of the County of New York, same shall be promptly accomplished by Tenant, at its
expense and a certified copy transmitted to Landlord.
T. If Tenant is a corporation, each person executing this lease on behalf
of Tenant hereby covenants, represents and warrants that Tenant is a duly
incorporated or duly qualified (if foreign) corporation and is authorized to do
business in the State of New York (a copy of evidence thereof to be supplied to
Landlord upon request); and that each person executing this lease on behalf of
Tenant is an officer of Tenant and that he is duly authorized to execute,
acknowledge and deliver this lease to Landlord (a copy of a resolution to that
effect to be supplied to Landlord upon request). Landlord covenants and warrants
that it has the full right and lawful authority to enter into this lease for the
full term aforesaid and for all extensions and renewals, if any, and Landlord
has lawful title to the building.
U. 1. If Tenant is a partnership (or is comprised of 2 or more persons,
individually, or as joint venturers or as copartners of a partnership) or if
Tenant's interest in this lease shall be assigned to a partnership (or to 2 or
more persons, individually, or as joint venturers or as copartners of a
partnership) pursuant to Articles 11 and 41 (any such partnership and such
persons are referred to in this Paragraph as "Partnership Tenant"), the
following provisions of this Paragraph shall apply to such Partnership Tenant;
(i) the liability of each of the parties comprising Partnership Tenant shall be
joint and several, and (ii) each of the parties comprising Partnership Tenant
hereby consents in advance to, and agrees to be bound by, any modifications,
termination, discharge or surrender of this lease which may hereafter be made
and by any notices, demands, requests or other communications which may
hereafter be given, by Partnership Tenant or by any of the parties comprising
Partnership Tenant, and (iii) any bills, statements, notices, demands, requests
or other communications given or
<PAGE>
rendered to Partnership Tenant or to any of the parties comprising Partnership
Tenant shall be deemed given or rendered to Partnership Tenant and to all such
parties and shall be binding upon Partnership Tenant and all parties, and (iv)
if Partnership Tenant shall admit new partners, all such new partners shall, by
their admission to Partnership Tenant, be deemed to have assumed performance of
all of the terms, covenants and conditions of this lease on Tenant's part to be
observed and performed, and (v) Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and upon demand of Landlord,
shall cause each such new partner to execute and deliver to Landlord an
agreement in form satisfactory to Landlord, wherein each such new partner shall
assume performance of all of the terms, covenants and conditions of this lease
on Tenant's part to be observed and performed (but neither Landlord's failure to
request any such agreement nor the failure of any such new partner to execute or
deliver any such agreement to Landlord shall vitiate the provisions of
subdivision (iv) of this Paragraph).
2. No Partnership Tenant shall convert to or become a corporation,
limited liability company, registered limited liability partnership or any other
form of business organization (any such entity being referred to herein as a
"Successor Entity"), without the prior written consent of Landlord, which may be
withheld in Landlord's sole discretion. Notwithstanding the foregoing, Landlord
will not unreasonably withhold or delay such consent provided that: (i) Tenant
shall cause each partner of Tenant to execute and deliver to Landlord an
agreement, in form and content satisfactory to Landlord, pursuant to which each
partner of Tenant agrees to remain personally liable jointly and severally for
all of the terms, covenants and conditions of the Lease that are to be observed
and performed by the Successor Entity, including the payment of rent; (ii) The
Successor Entity shall have a net worth ("Net Worth"), determined in accordance
with generally accepted accounting principles, consistently applied, of not less
than the Minimum Net Worth; (iii) Tenant is not in default of any of the terms,
covenants, or conditions of this Lease on the proposed effective date of such
conversion; (iv) The Successor Entity succeeds to all of Tenant's business and
assets; (v) Tenant shall reimburse Landlord within ten (10) days following
demand by Landlord for any and all reasonable costs and expenses that may be
incurred by Landlord in connection with the conversion of Tenant to a Successor
Entity, including, without limitation, any attorney's fees and disbursements;
and (vi) Tenant shall deliver to Landlord the written opinion of counsel
acceptable to Landlord in form and content relating to compliance with the
requirements specified in subparagraphs (i) and (iv). The Successor Entity shall
be bound by the provisions of Paragraph U 1. and all the other provisions of
this lease as if it were the Partnership Tenant.
V. Except as otherwise provided herein, and except for the inside surfaces
of all walls, windows and doors bounding the demised premises, all of the
building including exterior building walls, terraces, core corridor walls and
doors and any core corridor entrance and any space in or adjacent to the demised
premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other building facilities, and the use thereof, as
well as access thereto through the demised premises for the purpose of
operation, maintenance, decoration and repair, are reserved to Landlord.
W. Notwithstanding anything in the recitals of this lease to the contrary,
all payments of fixed rent and/or additional rent due under this lease shall be
paid as provided hereunder, by check
<PAGE>
written on Tenant's account from an institution having a New York City branch
which is a member of the New York Clearing House Association, made payable to
"SAAR Company, LLC", c/o of Newmark & Company Real Estate, Inc., at 125 Park
Avenue, New York, New York, until such time as Landlord shall notify Tenant
otherwise.
X. Landlord, at its expense, and on Tenant's request, shall maintain
initial listings on the building directory of the name of Tenant and the names
of its principles and officers, provided that the names so listed shall not take
up more than Tenant's Proportionate Share (as determined in Article 39 hereof)
on the building's directory, not to exceed twenty (20) listings. Any subsequent
or substitute listings, if approved by Landlord, shall be installed at Tenant's
expense, the cost of which shall not exceed the actual cost to Landlord thereof.
Y. If (i) there shall be, for at least seven (7) consecutive days (after
written notice from Tenant to Landlord specifying the circumstances involved)
during business hours, a substantial interference of Tenant's use and occupancy
of the entire demised premises as the result of: (a) a total disruption of
electric service to the demised premises, as the result of Landlord's negligence
or willful misconduct; or (b) the performance of a repair or maintenance
obligation which Landlord is required to perform to the building pursuant to
this lease (hereinafter collectively called an "Abatement Event"); (ii) said
Abatement Event prevents Tenant from conducting its business in the ordinary
course in the demised premises for a period in excess of seven (7) consecutive
days, (iii) Tenant has been compelled to (and actually has) as a result of said
Abatement Event, discontinued doing business in the demised premises, (iv) said
Abatement Event is attributable to the negligence or wrongful acts of Landlord
or the breach of its obligations hereunder and not attributable to the acts or
omissions of the public utility furnishing such service or any other reason
beyond Landlord's reasonable control, and (v) Landlord is unable to provide any
reasonable alternate in lieu thereof, then in addition to any other remedy of
Tenant, Tenant shall be permitted to request, upon not less than ten (10) days'
prior written notice to Landlord, that the American Arbitration Association (or
any successor thereto) in New York City determine the amount of the rental
abatement, if any, to which Tenant is entitled (solely for the period commencing
on the first business day after Tenant gave Landlord notice of the Abatement
Event until such time as such Abatement Event shall in fact have been cured) by
reason of the adverse affect, if any, which such Abatement Event had on Tenant's
conduct of its permitted business activities in the demised premises. Such
determination shall be made by the American Arbitration Association in
accordance with its rules then obtaining and the decision of the arbitrators
appointed pursuant thereto shall be binding upon the parties, and may be entered
as a judgment in any court having jurisdiction thereover. The fees and expenses
of such arbitration shall be borne by the losing party; provided, however, that
if each party is to a degree unsuccessful, said fees and expenses shall be borne
in accordance with their relative degree of success as determined by such
arbitration.
53. RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 33:
A. 1. The sidewalks, driveways, entrances, passages, lobby, esplanade
areas, plazas, elevators, vestibules, stairways and common corridors shall not
be obstructed or encumbered by any
<PAGE>
tenant or used for any purpose other than ingress and egress to and from the
demised premises and Tenant shall not permit any of its employees, agents or
invitees to congregate in any of said areas. No door mat of any kind whatsoever
shall be placed or left in any public hall or outside any entry door of the
demised premises, except as otherwise specifically provided herein.
2. The skylights, windows, and doors that reflect or admit light and
air into the public halls, passageways or other public places in the building or
the space occupied by other tenants shall not be covered or obstructed by
Tenant.
3. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were designed or
constructed, and no sweepings, rubbish, rags, acids or other substances shall be
thrown or deposited therein. All damages resulting from any misuse of the
fixtures shall be repaired at the expense of the tenant who, or whose servants,
employees, agents, visitors or licensees shall have caused the same.
4. No motorized vehicles, animals (other than in carrying boxes),
fish (other than in fish tanks) or birds (other than in cages) shall be brought
into or kept in or about the premises, except that motorized vehicles shall be
permitted in the Refusal Space (hereinafter defined) as and when same is made a
part of the demised premises and in the Basement Premises, if permitted by law,
provided that any alterations or improvements to the Basement Premises for such
usage shall be performed by Tenant, at its expense, and any increase in the
building's insurance premiums as a result thereof shall be paid by Tenant as
additional rent.
5. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television which, in the reasonable
judgment of Landlord, materially adversely disturbs other tenants in the
building, shall be made or permitted by any tenant. Nothing shall be done or
permitted in the demised premises by Tenant which would materially adversely
impair or interfere with the use or enjoyment by any other tenant of any other
space in the building. No tenant shall throw anything out of the doors, windows
or skylights or down the passageways.
6. Each tenant shall, upon the termination of its tenancy, turn over
to Landlord all keys of stores, offices and toilet rooms, either furnished to,
or otherwise procured by, such tenant and in the event of the loss of any keys
furnished by Landlord, such tenant shall pay to Landlord the cost thereof.
7. Tenant shall be permitted access to the demised premises
twenty-four (24) hours a day, seven (7) days a week, subject to Landlord's
reasonable security measures.
8. Unless Landlord shall furnish electrical energy hereunder as a
service included in the rent, Tenant shall, at Tenant's expense, provide
artificial light and electrical energy for the employees of Landlord and/or
Landlord's contractors making repairs or alterations in the demised premises.
9. The demised premises shall not be used for any immoral or illegal
purposes.
<PAGE>
10. Canvassing, soliciting and peddling in the building are
prohibited and each tenant shall cooperate to prevent the same.
11. There shall not be used in any space, or in the public halls of
the building, either by any tenant or by jobbers or any others, in the moving or
delivery or receipt of safes, freight, furniture, packages, boxes, crates,
paper, office material, or any other matter or thing, any hand trucks except
those equipped with rubber tires, side guards and such other safeguards as
Landlord shall reasonably require, unless Tenant shall take necessary steps to
prevent damage to the building and shall be responsible, at Tenant's expense, to
repair any damage to the building caused thereby.
12. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the demised
premises which would materially adversely affect other tenants or create a
public or private nuisance.
13. Notwithstanding anything contained in this lease to the
contrary, any entrance door or doors leading from the demised premises into the
public corridor shall be repaired and/or maintained by Tenant, at Tenant's sole
cost and expense, including, without limitation, repair and maintenance of the
enframement and mechanisms of said door(s) whether such repair or maintenance is
caused by any damage by Tenant, its employees, workmen or contractors, by
ordinary wear and tear or otherwise.
14. Tenant covenants and agrees, at its sole cost and expense, to
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions, and boards
regarding the collection, sorting, separating and recycling of waste products,
garbage, refuse and trash.
B. For any period of time that Tenant shall occupy the entire rentable
area of the building, other than the garage space, the terms of Sections 2, 5,
7, 10, 12 and 13 shall not apply.
54. RENT RESTRICTIONS:
If the fixed rent or any additional rent shall be or become uncollectible
by virtue of any law, governmental order or regulation, or direction of any
public officer or body, Tenant shall enter into such agreement or agreements and
take such other action (without additional expense to Tenant) as Landlord may
request, as may be legally permissible, to permit Landlord to collect the
maximum fixed rent and additional rent which may, from time to time during the
continuance of such legal rent restriction be legally permissible, but not in
excess of the amounts of fixed rent or additional rent payable under this lease.
Upon the termination of such legal rent restriction, (a) the fixed rent and
additional rent, after such termination, shall become payable under this lease
in the amount of the fixed rent and additional rent set forth in this lease for
the period following such termination, and (b) Tenant shall pay to Landlord, if
legally permissible, an amount equal to (i) the fixed rent and
<PAGE>
additional rent which would have been paid pursuant to this lease, but for such
rent restriction, less (ii) the fixed rent and additional rent paid by Tenant to
Landlord during the period that such rent restriction was in effect.
55. ADDENDUM TO ARTICLE 16 - BANKRUPTCY:
A. If Tenant assumes this lease and proposes to assign the same pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. ss. 101 et seq. (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this lease on terms acceptable to Tenant, then notice
of such proposed assignment, setting forth (i) the name and address of such
person, (ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person's future
performance under the lease, including, without limitation, the assurance
referred to in section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by Tenant not later than ninety (90) days after receipt by Tenant but
in no event later than sixty (60) 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 and for the same consideration,
if any, as the bona fide offer made by such person, less any brokerage
commissions which may be payable out of the consideration to be paid by such
person for the assignment of this lease.
B. If this lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise delivered in connection with such assignment shall be paid
or delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's Property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and
shall be promptly paid to Landlord.
C. Any person or entity to which this lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed without further act or deed
to have assumed all of the obligations arising under this lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
D. Nothing contained in this Article shall, in any way, constitute a
waiver of the provisions of this lease relating to assignment. Tenant shall not,
by virtue of this Article, have any further rights relating to assignment other
than those granted in the Bankruptcy Code.
E. Notwithstanding anything in this lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of Section
502(b)(7) of the Bankruptcy Code.
F. The term "Tenant" as used in this Article includes any trustee, debtor
in possession, receiver, custodian or other similar officer.
<PAGE>
56. SECOND FLOOR PREMISES:
A. The entire rentable area of the second (2nd) floor of the building (the
"Second Floor Premises") is currently subject to a lease (the "Existing 2nd
Floor Lease") which is scheduled to expire as set forth in Exhibit "D" hereto.
Provided that this lease shall be in full force and effect and without default
of any of the obligations required to be observed or performed by Tenant
hereunder beyond the expiration of applicable notice and cure periods, and
Tenant named herein shall occupy all of the demised premises for the conduct of
its business, then Tenant shall have the one-time option (the "Second Floor
Option") exercisable only upon delivery of notice to Landlord (the "Second Floor
Notice") no later than October 31, 2001 (the "Second Floor Notice Date") to
lease the Second Floor Premises in accordance with the terms of this Article
commencing on the date of tendering of delivery of possession thereof to Tenant
(the "Second Floor Commencement Date") for the remainder of the term of this
lease; provided, however, that if the Existing 2nd Floor Lease shall terminate
prior to the stated expiration date thereof, Tenant will additionally have the
Second Floor Option provided above with a Second Floor Notice Date which is
thirty (30) days following notice by Landlord to Tenant of such earlier
termination. If Tenant shall fail to exercise such earlier option, Tenant will
continue to have the previously stated Second Floor Option.
B. In the event that Tenant shall desire to exercise the Second Floor
Option, Tenant shall send the Second Floor Notice to Landlord on or before the
Second Floor Notice Date. Time is of the essence with respect to Tenant's giving
of the Second Floor Notice to Landlord.
C. If Tenant fails to give the Second Floor Notice to Landlord on or
before the Second Floor Notice Date, the Second Floor Option shall be deemed
revoked, null and void, and of no further force and effect, and Landlord may
thereafter proceed with the leasing of all or a portion of the Second Floor
Premises during the balance of the term of this lease upon any terms and
conditions.
D. If Tenant shall send the Second Floor Notice to Landlord on or before
the Second Floor Notice Date and in the manner set forth in Section B, then the
parties hereto shall enter into an amendment to this lease (the "Second Floor
Amendment"), which Second Floor Amendment shall provide that effective as of the
Second Floor Commencement Date, the Second Floor Premises shall be deemed
included in the demised premises upon all of the same terms, covenants and
conditions contained in this lease, except that:
1. the rental plan for the Second Floor Premises shall be added to
and become a part of Exhibit "A" to this lease;
2. the SFA shall be increased by 21,000 and the annual fixed rent
payable by Tenant pursuant to Article 51 of this lease shall be adjusted
accordingly, taking into account rental adjustments set forth therein commencing
with the rental rate per square foot then applicable to the portion of the
demised premises tendered to Tenant upon the Commencement Date;
<PAGE>
3. Article 50 of this lease shall apply to the Second Floor Premises
and Tenant shall be required to perform Tenant's Initial Changes thereto, and
otherwise comply with the terms of said Article;
4. "Tenant's Proportionate Share," as such term is defined in
Sections 39(A)(4) and 40(A)(2) of this lease, shall be adjusted in accordance
with the increase in the SFA provided in this Section; and
5. If Landlord is unable to give possession of the Second Floor
Premises to Tenant because of the holding-over or retention of possession of any
tenant, undertenant or occupants, or for any other reason beyond Landlord's
reasonable control, Landlord shall not be subject to any liability for failure
to give possession on said date and the validity of this lease shall not be
impaired under such circumstances, except that if Landlord shall fail to tender
possession thereof to Tenant on or before the date which is one (1) year
following the expiration date of the Existing 2nd Floor Lease, Tenant may, at
its option, by notice delivered to Landlord within ten (10) days following the
end of such one (1) year period, cancel the exercise of the foregoing option,
and the Second Floor Premises shall not be included in the demised premises, and
this Article shall thereafter be of no further force of effect.
57. FIFTH FLOOR PREMISES:
A. Subject to the terms of Article 60 hereof, the leasing of the Fifth
Floor Premises shall commence on January 1, 2003 (the "Fifth Floor Commencement
Date") and effective as of the Fifth Floor Commencement Date the Fifth Floor
Premises shall be deemed included in the demised premises upon all of the same
terms, covenants and conditions contained in this lease, except that:
1. the rental plan for the Fifth Floor Premises shall be added to
and become a part of Exhibit "A" to this lease;
2. the SFA shall be increased by the rentable square foot area of
subject Fifth Floor Premises as set forth in Section 18 of Article 38 hereof,
and the annual fixed rent payable by Tenant pursuant to Article 51 of this lease
shall be adjusted accordingly;
3. Article 50 of this lease shall apply to the Fifth Floor Premises
and Tenant shall be required to perform Tenant's Initial Changes thereto, and
otherwise comply with the terms of said Article; and
4. "Tenant's Proportionate Share," as such term is defined in
Sections 39(A)(4) and 40(A)(2) of this lease, shall be adjusted in accordance
with the increase in the SFA provided herein.
58. BASEMENT PREMISES:
<PAGE>
A. The portion of the basement space in the building as shown on the
rental plan annexed hereto as Exhibit "B" and made a part hereof (the "Basement
Premises") is now occupied pursuant to a lease (the "Basement Lease") which is
scheduled to expire as set forth in Exhibit "D" hereto. Provided that this lease
shall be in full force and effect and without default of any of the obligations
required to be observed or performed by Tenant hereunder beyond the expiration
of applicable notice and cure periods, and Tenant named herein shall occupy all
of the demised premises for the conduct of its business, then Tenant shall have
the one-time option (the "Basement Option") exercisable only upon delivery of
notice to Landlord (the "Basement Notice") no later than June 30, 2000 (the
"Basement Notice Date") to lease the Basement Premises in accordance with the
terms of this Article commencing on the date of tendering of delivery of
possession thereof to Tenant (the "Basement Commencement Date") for the
remainder of the term of this lease; provided, however, that if the Existing
Basement Lease shall terminate as the result of a default by tenant thereunder
prior to the stated expiration date thereof, Tenant shall have the Basement
Option provided above with a Basement Notice Date which is thirty (30) days
following notice by Landlord to Tenant of such earlier termination (the "Early
Basement Option").
B. In the event that Tenant shall desire to exercise the Basement Option
or the Early Basement Option, Tenant shall send the Basement Notice to Landlord
on or before the Basement Notice Date. Time is of the essence with respect to
Tenant's giving of the Basement Notice to Landlord.
C. If Tenant fails to give the Basement Notice to Landlord on or before
the Basement Notice Date, the Early Basement Option and the Basement Option
shall be deemed revoked, null and void, and of no further force and effect, and
Landlord may thereafter proceed with the leasing of all or a portion of the
Basement Premises during the balance of the term of this lease upon any terms
and conditions.
D. If Tenant shall exercise the Early Basement Option by sending the
Basement Notice to Landlord on or before the Basement Notice Date and in the
manner set forth in Section B, then Section E of this Article shall be of no
further force or effect, the parties shall enter into an amendment to this lease
(the "Basement Amendment") for the Basement Premises, which Basement Amendment
shall provide that effective as of the Basement Commencement Date the Basement
Premises shall be deemed included in the demised premises upon all of the same
terms, covenants and conditions contained in this lease, except that:
1. The rental plan for the Basement Premises shall be added to and
become a part of Exhibit "A" to this lease;
2. The SFA shall be increased by 16,000, and the annual fixed rent
payable pursuant to Article 51 shall be increased as follows:
(a) during the period commencing on the Basement Commencement
Date and ending on August 31, 1999, by $99,727.74;
<PAGE>
(b) during the period commencing on September 1, 1999 and
ending on March 31, 2001, by $105,254.70; and
(c) from and after April 1 2001 by (i) $112,000 during the
remainder of the first five (5) Lease Years; (ii) $128,000.00 during the second
five (5) Lease Years; and (iii) $144,000.00 during the remainder of the term of
this lease;
3. The Free Fixed Rent Period set forth in Section B of Article 51
shall commence on April 1, 2001, and provided Tenant shall not be in default
hereunder beyond the expiration of applicable notice and cure periods, Tenant
shall receive an additional credit to the fixed rent payable hereunder
attributable only to the Basement Premises for a period equal to one (1) month
multiplied by the number of years (pro rated for any portion of a year) between
the Basement Commencement Date and March 31, 2001, which credit shall be applied
from the Basement Commencement Date.
4. "Tenant's Proportionate Share" a such term is defined in Section
39(A)(4) and 40(A)(2) of this lease, shall be adjusted in accordance with the
increase in the SFA provided in this Section.
E. If there shall have been no Early Basement Option and Tenant shall
exercise the Basement Option by sending the Basement Notice to Landlord on or
before the Basement Notice Date and in the manner set forth in Section B, then
Section D of this Article shall be of no further force or effect, the parties
hereto shall enter into an amendment to this lease (the "Basement Amendment")
for the subject Basement Premises, which Basement Amendment shall provide that
effective as of the Basement Commencement Date the Basement Premises shall be
deemed included in the demised premises upon all of the same terms, covenants
and conditions contained in this lease, except that:
1. the rental plan for the Basement Premises shall be added to and
become a part of Exhibit "A" to this lease;
2. the SFA shall be increased by 16,000 and the annual fixed rent
payable by Tenant pursuant to Article 51 of this lease shall be increased by (i)
$112,000.00 during the remainder of the first five (5) Lease Years; (ii)
$128,000.00 during the second five (5) Lease Years; and (iii) $144,000.00 during
the remainder of the term of this lease;
3. "Tenant's Proportionate Share," as such term is defined in
Sections 39(A)(4) and 40(A)(2) of this lease, shall be adjusted in accordance
with the increase in the SFA provided in this Section.
F. If Landlord is unable to give possession of the Basement Premises to
Tenant because of the holding-over or retention of possession of any tenant,
undertenant or occupants, or for any other reason beyond Landlord's reasonable
control, Landlord shall not be subject to any liability for failure to give
possession on said date and the validity of this lease shall not be impaired
under such
<PAGE>
circumstances, except that if Landlord shall fail to tender possession thereof
to Tenant on or before the date which is one (1) year following the expiration
date of the Basement Lease, Tenant may, at its option, by notice delivered to
Landlord within ten (10) days following the end of such one (1) year period
cancel the exercise of the foregoing option, and the Basement Premises shall not
be included in the demised premises, and this Article shall thereafter be of no
further force of effect.
59. GROUND FLOOR PREMISES:
From and after the tendering of possession of the Ground Floor Premises to
Tenant in addition to the terms of this lease, the following terms, covenants
and conditions shall apply:
A. Tenant agrees to discontinue immediately, after demand by Landlord, and
as often as such demand shall be made, the unlawful (or, with respect to any
assignee of this lease or subtenant of Tenant, offensive in Landlord's
reasonable judgment) exhibition, display (window or otherwise), or advertisement
in or with respect to the Ground Floor Premises or any part thereof, of any
article or material or the manner of exhibition, display or advertisement of
same. All displays visible from outside the Ground Floor Premises shall be kept
neat and orderly in appearance. All glass elements of the Ground Floor Premises
visible from the outside of the Ground Floor Premises shall be maintained
(including, without limitation, frequent cleaning as directed by Landlord) by
Tenant at Tenant's sole expense.
B. Tenant covenants that Tenant will not use or suffer or permit any
person to use the demised premises for any unlawful purpose and to obtain and
maintain at Tenant's sole cost and expense all licenses and permits from any and
all governmental authorities having jurisdiction of the demised premises which
may be necessary for the conduct of Tenant's business therein. Tenant further
covenants to comply with applicable laws, resolutions, codes, rules and
regulations of any department, bureau, agency or any governmental authority
having jurisdiction over the operation, occupancy, maintenance and use of the
demised premises for the purposes set forth herein. Tenant will indemnify and
save Landlord harmless from and against any and all claims, penalties, loss,
damage or expense imposed by reason of a violation of any applicable law or the
rules and regulations of governmental authorities having jurisdiction thereof
related to Tenant's use and occupancy.
C. Tenant agrees that Tenant will not bring or permit any obscene or
pornographic material on the demised premises, and shall not permit or conduct
any obscene, nude, or semi-nude live performances on the demised premises, nor
permit use of the demised premises for nude modeling, or as a so-called rubber
goods shop, or as a sex club of any sort, or as a "massage parlor". Tenant
agrees further that Tenant will not permit any of these uses by any sublessee or
assignee of the demised premises. This Article shall directly bind any
successors in interest to Tenant. Tenant agrees that if at any time Tenant
violates any of the provisions of this Article, such violation shall be deemed a
breach of a substantial obligation of the terms of this lease and objectionable
conduct. Pornographic material is defined for purposes of this Article as any
written or pictorial manner with prurient appeal or any objects or instruments
that are primarily concerned with lewd or prurient sexual activity. Obscene
material is defined here as it is in Penal Law ss.235.00.
<PAGE>
D. Tenant shall maintain the Ground Floor Premises in a reasonably neat
and orderly fashion at all times during the performance of such construction.
E. In addition to Tenant's repair and maintenance obligations under
Article 4 of this lease, at such time as Tenant erects on the outside of the
building, pursuant to the terms of this lease, a sign, or signs or any other
alterations or installations, Tenant shall maintain such exterior installations
in good appearance and shall cause same to be operated in a good and workmanlike
manner and shall make all repairs thereto necessary to keep same in good order
and condition of Tenant's own cost and expense, and shall cause same to be
covered by insurance provided herein.
F. Tenant, at its own cost and expense, shall replace all damaged or
broken plate glass or other glass in or about the Ground Floor Premises, unless
caused by the negligence or willful misconduct of Landlord or its agents,
employees or contractors. Tenant shall keep such glass insured for the benefit
of Landlord and shall submit said insurance policy and evidence of payment of
premiums therefor to Landlord upon demand. Such policy shall contain evidence an
endorsement that such insurance may not be cancelled except upon ten (10) days
notice to Landlord. If Tenant shall default in its obligations as set forth in
this Article, in addition to all other rights and remedies had hereunder,
Landlord may procure such insurance and pay such premiums for the account of
Tenant and add the cost thereof to the installment of rent next falling due. So
long as Tenant maintains the Minimum Net Worth, Tenant named herein may
self-insure against damage to plate glass in the Ground Floor Premises.
Notwithstanding anything to the contrary set forth in Article 3 hereof, if
during the term hereof, and in accordance with the applicable provisions of this
lease, Tenant shall cover over or seal the plate glass opening to the Ground
Floor Premises, Tenant shall not be required to restore same to its original
condition at the end of the term hereof.
60. ADDENDUM TO ARTICLE 24; DELIVERY OF POSSESSION:
A. Tenant acknowledges that all or any portion of the demised premises may
be occupied at the time of the execution of this lease and that any or all of
such occupants may choose to hold-over following the execution of its lease.
Landlord agrees to use best efforts, at its sole cost and expense, to enforce
the relevant provisions of its leases with such occupants and to otherwise cause
any existing occupant of all or a portion of the premises designated hereunder
as the demised premises to vacate and deliver possession thereof to Landlord by
commencement and prosecution of necessary legal proceedings to such end or
reaching an amicable written agreement with any such tenant. Notwithstanding the
foregoing, if Landlord is unable to give possession of all or any portion of the
demised premises because of the holding-over or retention of possession of any
tenant, undertenant or occupants or for any other reason, Landlord shall not be
subject to any liability for failure to give possession thereof and the validity
of this lease shall not be impaired under such circumstances, nor shall the same
be construed in any wise to extend the term of this lease. If permission is
given to Tenant to enter into the possession of any portion of the demised
premises or to occupy premises other than the demised premises prior to the date
specified as the commencement of the term of this lease, Tenant covenants and
agrees that such possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease. The
<PAGE>
provisions of this Article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law.
B. Tenant acknowledges that possession of the entire demised premises may
not be tendered to Tenant on the Commencement Date, in which event the demised
premises shall consist only of the portion or portions so tendered. At such time
as possession of any other portion of the demised premises shall be tendered to
Tenant, such portion shall be deemed a part of the demised premises for purposes
of this lease, the SFA shall be increased accordingly and, from and after such
date, the fixed rent shall be payable for such portion in accordance with the
terms of Article 51 hereof (subject to the terms of Section B of such Article),
and the terms of Article 50 of this lease shall apply and Tenant shall be
required to perform Tenant's Initial Changes thereto, and otherwise comply with
the terms of Article 50 as same shall apply to any such portion of the demised
premises. The expiration date set forth in the existing leases affecting the
demised premises and option premises (the "Existing Leases") are set forth on
Exhibit "D" annexed hereto and made a part hereof. Landlord represents to Tenant
that the Existing Leases contain no options or rights for the tenant thereunder
to extend or renew the term of the applicable Existing Lease.
61. TENANT'S ADDITIONAL RIGHTS:
As of the Commencement Date, and thereafter, only so long as (a) Tenant
shall not be in default under this lease, (b) Kenneth Cole Productions, Inc.
shall be Tenant hereunder and (c) Kenneth Cole Productions, Inc. shall occupy at
least forty (40%) percent of the building for the conduct of its business.
A. Landlord, at Tenant's option, shall name the building for Tenant
(provided such name has "Kenneth Cole" appearing therein. If at any time during
the term of this lease any of the conditions set forth in this Article are not
satisfied, then from and after such time, and for the balance of the term of
this lease, Landlord may, at its option, adopt any name for the building. Tenant
shall indemnify and hold Landlord harmless from and against any and all actions,
proceedings, liabilities, obligations, claims, damages, deficiencies, losses,
judgments, suits, expenses and costs (including, without limitation, reasonable
legal fees and disbursements) arising under or out of, or in connection with or
resulting from (a) the naming of the building by Tenant, or (b) any claim,
damage or action concerning any actual or alleged copyright, trademark, service
mark or other violation by Tenant of a proprietary right of any third party in
and to such name, logos or mark associated therewith or phonetic equivalent
thereof.
B. Tenant (or a subtenant or assignee permitted or consented to under this
lease and occupying at least forty (40%) percent of the building) shall have the
right to install, at its sole cost and expense, identification signs on the
exterior of the building, subject to the prior written approval of Landlord as
to dimensions, material, content, location and design, which approval Landlord
agrees not to unreasonably withhold. Tenant shall comply with all of the laws,
orders, rules and regulations of the governmental authorities having
jurisdiction thereof, including zoning laws, building codes and as required by
insurance underwriters and shall not interfere with the use and occupancy of any
tenants in the building or block any building windows, vents or exhausts or
damage the building in
<PAGE>
any way. Tenant, at its sole cost and expense, shall maintain and repair any
such sign so that during the term of this lease it shall remain in good working
order and repair and first-class appearance, and shall have any such sign
covered by insurance policies set forth herein. Landlord agrees to reasonably
cooperate with Tenant, at Tenant's expense, in completing applications for
signage permits and approvals. Tenant shall obtain and pay for all permits
required therefor. Tenant expressly agrees that all signs shall not be installed
on the building until all approvals and permits are first obtained and copies
thereof delivered to Landlord with evidence of payment for any fees pertaining
thereto. Tenant agrees to pay all annual renewal fees pertaining to Tenant's
signs. Upon the expiration or earlier termination of this lease, or if the above
conditions shall no longer be satisfied, Tenant shall remove any sign from the
exterior of the building and restore the building to uniform appearance and its
condition prior to the installation thereof. In the event Landlord or Landlord's
representatives shall deem it necessary to remove any such sign or signs in
order to paint or to make any other repairs, alterations or improvements in or
upon the building, or any part thereof, Landlord shall have the right to do so,
provided the same be removed and replaced at Landlord's expense (to be
reimbursed as Operating Expenses hereunder), whenever the said repairs,
alterations or improvements shall have been completed, if required by law or by
reasonable building safety concerns.
C. Provided Tenant is not in default under the terms of this lease, beyond
the expiration of applicable notice and cure periods provided hereunder, Tenant
shall be permitted to use and occupy the roof portion of the building (the
"Roof") and install thereon, a roof deck, signage (subject to Paragraph B of
this Article), satellite dish, cable television equipment, antenna, HVAC
equipment and/or a cooling tower in a location and of a size, height, design,
material, specification and manner of installation approved in advance by
Landlord (which approval shall not be unreasonably withheld or delayed),
pursuant to the terms, covenants and conditions of this lease and the following
additional conditions: (i) Tenant's use and occupancy of the Roof and any
alterations or installations performed thereon or thereto shall in no event
adversely effect the existing warranty in connection with the Roof; (ii) Tenant
shall receive Landlord's prior written approval for any proposed alterations and
installations to the Roof; (iii) Tenant shall, prior to the use or occupancy
and, at all times during the term hereof, maintain insurance reasonably
satisfactory to Landlord covering the Roof and deliver certificates evidencing
same to Landlord; (iv) all work, alterations and installations shall be
performed by Tenant, at its expense in a first-class manner and otherwise in
accordance with this lease; (v) Tenant shall maintain and repair any alterations
or installations performed to the Roof in a first class manner, at its sole cost
and expense; (vi) Tenant shall in no event exceed the floor load capacity of the
Roof, and, if Tenant intends to exceed such capacity, at Landlord's election,
Tenant shall reinforce the Roof, at its sole cost and expense; (vii) in no event
shall Tenant be permitted to assign, sublet or share all or any portion of the
Roof with any person or entity; (viii) Tenant shall have exclusive use of the
Roof, but Landlord shall be provided access to the Roof subject to the terms of
this lease, as herein permitted to Landlord with respect to the demised
premises, and for the proper operation of the building; and (ix) upon the
expiration of this lease or earlier termination hereof, Tenant, at Landlord's
option, shall, at Tenant's expense, remove any installations or alterations to
the Roof and restore the Roof to its condition prior to the installations or
alterations thereto.
<PAGE>
62. RENEWAL OPTIONS:
A. Subject to the provisions hereinafter set forth, Tenant shall have
three (3) options (each a "Renewal Option") to extend the term of this lease for
three (3) additional periods of five years (each a "Renewal Term"), which shall
commence on the date immediately succeeding the Expiration Date or the
expiration of the immediately preceding Renewal Term (the "Renewal Term
Commencement Date") and expire on the day immediately preceding the fifth (5th)
anniversary of the Renewal Term Commencement Date, provided that (a) this lease
shall not have been previously terminated, and (b) Tenant shall not be in
default under this lease beyond the expiration of applicable notice and cure
periods (x) on the date Tenant gives Landlord written notice (the "Renewal
Notice") of Tenant's election to exercise a Renewal Option, or, at the option of
Landlord, (y) on the Renewal Term Commencement Date. Each Renewal Option may be
exercised with respect to the entire demised premises only and shall be
exercisable by Tenant delivering the Renewal Notice to Landlord at least twelve
(12) months, but no more than twenty-four (24) months prior to the Expiration
Date or the expiration of the immediately preceding Renewal Term. Time is of the
essence with respect to the giving of the Renewal Notice. Upon the giving of the
final Renewal Notice, Tenant shall have no further right or option to extend or
renew the term of this lease. If Tenant shall fail to timely deliver any Renewal
Notice hereunder, then Tenant shall not be entitled to any further Renewal
Option hereunder and the lease shall expire at the end of the existing term or
Renewal Term unless otherwise terminated hereunder. As a courtesy to Tenant,
Landlord agrees to use commercially reasonable efforts to deliver a reminder
notice to Tenant of each Renewal Option on or before the date which is at least
twelve (12) months prior to the Expiration Date or the expiration of the
applicable Renewal Term, but any failure to deliver such reminder notice shall
not be deemed a default by Landlord under this lease, nor shall such failure
entitle Tenant to any rights or remedies against Landlord, nor shall such
failure modify the terms of this Article, except that in the event of such
failure by Landlord to deliver such reminder notice, the applicable Renewal
Notice may be delivered to Landlord by Tenant no later than nine (9) months
prior to the Expiration Date or the expiration of the applicable Renewal Term.
B. If Tenant exercises any Renewal Option, the Renewal Term shall be upon
the same terms, covenants and conditions as those contained in this lease,
except that (a) the fixed rent shall be deemed to mean the fixed rent as
determined pursuant to Section C of this Article, (b) Tenant shall not be
entitled to any free rent period, and (c) the provisions of Article 50 shall not
be applicable to the Renewal Term. It is expressly understood that during the
final Renewal Term, Tenant shall have no further right to renew this lease.
C. The fixed rent payable during the Renewal Term shall be determined as
follows:
1. The fixed rent for the demised premises for the Renewal Term
shall be an amount equal to (i) eighty-five (85%) percent for the first Renewal
Option, and (ii) ninety (90%) percent for the second and third Renewal Options,
of the annual fair market rental value of the demised premises (the "Fair Market
Rent") on the first (1st) day of the applicable Renewal Term.
<PAGE>
2. The Fair Market Rent shall be determined as if the demised
premises were available in the then rental market for comparable buildings in
Manhattan and assuming Landlord has had a reasonable time to locate a tenant who
rents with the knowledge of the uses to which the demised premises can be
adapted, and that neither Landlord nor the prospective tenant is under any
compulsion to rent, taking into account the fact that (a) the Base Tax and the
Base Year provided herein shall not change for the purpose of calculating the
escalation payments payable pursuant to Articles 39 and 40 hereof, which
payments shall continue to be made during the Renewal Term, and (b) Landlord
shall not be required to perform any work in or to the demised premises or
contribute to any work to be performed. During the Renewal Term, all additional
rent and other charges payable hereunder shall continue to be paid pursuant to
the terms of this lease (including, without limitation, pursuant to Articles 39
and 40 hereof).
3. For purposes of determining the Fair Market Rent, the following
procedure shall apply:
(i) the Fair Market Rent shall be determined on the basis of
the highest and best use of the demised premises assuming that the demised
premises are free and clear of all leases and tenancies (including this
lease), and, at the election of Landlord, that the demised premises are
occupied by one (1) tenant or are subdivided and occupied by more than one
(1) tenant, whether improved or unimproved.
(ii) Landlord shall give Tenant written notice (the "Rent
Notice") which shall set forth Landlord's determination of the Fair Market
Rent ("Landlord's Determination").
(iii) If Landlord's Determination exceeds the fixed rent
payable by Tenant on the Expiration Date or expiration of the preceding
Renewal Term, then Tenant shall give Landlord written notice ("Tenant's
Option Notice"), within thirty (30) days after Tenant's receipt of the
Rent Notice, of whether Tenant accepts or disputes Landlord's
Determination. If Tenant in Tenant's Option Notice accepts Landlord's
Determination or if Tenant fails or refuses to give Tenant's Option Notice
as aforesaid, Tenant shall be deemed to have accepted Landlord's
Determination for the Renewal Term in accordance with the terms of this
Article. If Tenant in Tenant's Option Notice disputes Landlord's
Determination, Tenant shall deliver to Landlord, within thirty (30) days
after Tenant's receipt of the Rent Notice, Tenant's determination of the
Fair Market Rent ("Tenant's Determination"), as determined by an
independent real estate appraiser ("Tenant's Appraiser"), together with a
copy of the appraisal prepared by Tenant's Appraiser.
(iv) Landlord shall give Tenant written notice ("Landlord's
R/O Notice"), within thirty (30) days after Landlord's receipt of Tenant's
Determination, of whether Landlord accepts or disputes Tenant's
Determination. If Landlord in Landlord's R/O Notice accepts Tenant's
Determination or if Landlord fails or refuses to give Landlord's R/O
Notice as aforesaid, Landlord shall be deemed to have accepted Tenant's
Determination. If Landlord in Landlord's R/O Notice disputes Tenant's
Determination, Landlord shall appoint an independent real estate appraiser
("Landlord's Appraiser"). If within thirty (30) days after
<PAGE>
Tenant's receipt of Landlord's R/O Notice in dispute, Landlord's Appraiser
and Tenant's Appraiser shall mutually agree upon the determination (the
"Mutual Determination") of the Fair Market Rent, their determination shall
be final and binding upon the parties. If Landlord's Appraiser and
Tenant's Appraiser shall be unable to reach a Mutual Determination within
said thirty (30) day period, both of the Appraisers shall jointly select a
third independent real estate appraiser (the "Third Appraiser") whose fee
shall be borne equally by Landlord and Tenant. In the event that
Landlord's Appraiser and Tenant's Appraiser shall be unable to jointly
agree on the designation of the Third Appraiser within five (5) days after
they are requested to do so by either party, then the parties agree to
allow the American Arbitration Association, or any successor organization,
to designate the Third Appraiser in accordance with the rules, regulations
and/or procedures then obtaining of the American Arbitration Association
or any successor organization.
(v) The Third Appraiser shall conduct such hearings and
investigations as he may deem appropriate and shall, within thirty (30)
days after the date of designation of the Third Appraiser, choose either
Landlord's or Tenant's Determination, and such choice by the Third
Appraiser shall be conclusive and binding upon Landlord and Tenant. Each
party shall pay its own counsel fees and expenses, if any, in connection
with any arbitration under this Section, including the expenses and fees
of any Appraiser selected by it in accordance with provisions of this
Article. Any Appraiser appointed pursuant to this Article shall be a
licensed, independent real estate appraiser with at least ten (10) years'
experience in leasing and valuation of properties which are similar in
character to the building and a member of the American Institute of
Appraisers of the National Association of Real Estate Boards and a member
of the Society of Real Estate Appraisers. The Appraisers shall not have
the power to add to, modify or change any of the provisions of this lease.
(vi) It is expressly understood that any determination of the
Fair Market Rent pursuant to this Article shall be based on the criteria
stated in this Section.
4. After a determination has been made of the Rental Value for the
Renewal Term, the parties shall execute and deliver to each other an instrument
setting forth the Rental Value as hereinabove determined.
5. If the final determination of the Rental Value shall not be made
on or before the first (1st) day of the Renewal Term in accordance with the
provisions of this Article, pending such final determination Tenant shall
continue to pay, as the fixed rent for such Renewal Term, an amount equal to
Landlord's Determination (subject to escalation pursuant to Articles 39 and 40
hereof). If, based upon the final determination hereunder of the Rental Value,
the payments made by Tenant on account of the fixed rent for such portion of the
Renewal Term were less than the Rental Value payable for the Renewal Term,
Tenant shall pay to Landlord the amount of such deficiency within five (5) days
after demand therefor, and if the payments made by Tenant were greater than the
Rental Value payable for the Renewal Term, Landlord shall credit the amount of
any such excess to the next installments of fixed rent due under this lease.
<PAGE>
63. DELAYED FOURTH FLOOR PREMISES:
A. Subject to the terms of Article 60 hereof, the leasing of the Delayed
Fourth Floor Premises shall commence as of May 1, 2003 (the "Delayed Fourth
Floor Commencement Date") and effective as of the Delayed Fourth Floor
Commencement Date, the Delayed Fourth Floor Premises shall be deemed included in
the demised premises upon all of the same terms, covenants and conditions
contained in this lease, except that:
1. the rental plan for the Delayed Fourth Floor Premises shall be
added to and become a part of Exhibit "A" to this lease;
2. the SFA shall be increased by the rentable square foot area of
the Delayed Fourth Floor Premises set forth in Section 18 of Article 38 hereof;
3. Article 50 of this lease shall apply to the Delayed Fourth Floor
Premises and Tenant shall be required to perform Tenant's Initial Changes
thereto and otherwise comply with the terms of said Article; and
4. "Tenant's Proportionate Share," as such term is defined in
Sections 39(A)(4) and 40(A)(2) of this lease, shall be adjusted in accordance
with the increase in the SFA provided in this Section.
64. INTENTIONALLY OMITTED..
65. REFUSAL SPACE OPTION:
A. Provided that Tenant is not then in default under the terms of this
lease, beyond the expiration of any applicable notice and cure periods provided
hereunder, and Tenant named herein shall occupy all of the demised premises for
the conduct of its business, then following the expiration or earlier
termination of the existing lease covering the garage premises in the building
(the "Refusal Space"), Landlord agrees not to lease the Refusal Space to any
party without first offering Tenant the option (the "Refusal Space Option") to
lease the Refusal Space in accordance with the terms of this Article. Upon
receipt by Landlord of a bona fide, arms length, third party offer for the
leasing of the Refusal Space (the "3rd Party Offer"), Landlord shall provide
notice ("Landlord's Notice") thereof to Tenant setting forth all of the material
financial terms of the 3rd Party Offer and setting forth the identity of the
maker of the 3rd Party Offer (the "3rd Party"). Tenant may exercise the Refusal
Option only by notifying Landlord (the "Exercise Notice") within fifteen (15)
business days following receipt of Landlord's Notice. Time shall be of the
essence with respect to Tenant's delivery of the Exercise Notice. The timely
delivery of the Exercise Notice in accordance with this Article shall constitute
a binding irrevocable agreement to lease the Refusal Space on the terms stated
in this Article.
B. If Tenant fails to timely give the Exercise Notice to Landlord, then,
provided Landlord enters into a lease with the 3rd Party within six (6) months
following delivery of
<PAGE>
Landlord's Notice, and the financial terms of such lease, when taken in the
aggregate, are not materially more favorable to the 3rd Party than those set
forth in Landlord's Notice, the Refusal Space Option shall be deemed revoked,
null and void, and of no further force and effect.
C. If Tenant shall timely send the Exercise Notice to Landlord, the
parties hereto shall enter into an amendment to this lease containing the
financial terms set forth in Landlord's Notice and otherwise incorporating the
Refusal Space as a part of the demised premises in accordance with the terms of
this lease.
<PAGE>
EXHIBIT "A"
Page 1
Ground Floor Premises
NOTE: This is a schematic plan and is intended to show only the proposed general
layout of the premises. All measures, distances and dimensions are approximate
and not to scale. The depictions hereon do not constitute a warranty or
representation of any kind.
A-1
<PAGE>
EXHIBIT "A"
Page 2
Early Fourth Floor Premises
NOTE: This is a schematic plan and is intended to show only the proposed general
layout of the premises. All measures, distances and dimensions are approximate
and not to scale. The depictions hereon do not constitute a warranty or
representation of any kind.
A-2
<PAGE>
EXHIBIT "B"
Basement Premises
NOTE: This is a schematic plan and is intended to show only the proposed general
layout of the premises. All measures, distances and dimensions are approximate
and not to scale. The depictions hereon do not constitute a warranty or
representation of any kind.
B-1
<PAGE>
March 29, 1999
EXHIBIT "C"
Prohibited Uses
1. Facility which performs abortions
2. Welfare facility
3. Institutional psychiatric facility
4. Alcohol treatment and/or drug treatment or rehabilitation facility
5. Governmental or quasi-governmental offices
6. Child care center, except as a service to Tenant's employees
7. Heavy industrial uses
8. Heavy manufacturing
9. Supermarket
10. Pornographic uses
11. Massage parlor
12. Veterinary office
13. Kennel
14. Off-track betting parlor or other gambling establishment
15. Warehousing of garbage or refuse or the dumping or disposing thereof,
except as ancillary to Tenant's operation of offices, showrooms or retail
shoe stores or similar and ancillary uses
16. Any type of school
C-1
<PAGE>
17. Use which is generally deemed obnoxious or a nuisance (i.e., emits or
results in strong, unusual or offensive odors, fumes, dust or vapors, or
emits objectionable sounds or noise)
18. Illegal method of business operation
19. Use of the sidewalks by any assignee of this lease or subtenant of all or
any portion of the demised premises occupying less than forty (40%)
percent of the building for any display, sale or similar undertaking or
storage
20. Use of a loudspeaker or amplified sound system by any assignee of this
lease or subtenant of all or any portion of the demised premises occupying
less than forty (40%) percent of the building on the exterior of the
building
21. Self-storage facility
C-2
<PAGE>
EXHIBIT "D"
Expiration Dates for Existing Leases
Tenant Suite Commences Expires
- ------ ----- --------- -------
(currently designated Landlord)
Attitude New York 101 4/97 3/07
M. Parpis Food Distribution 102 4/91 3/01
West Side Billiards 103 9/89 7/01
N.Y.S. Assoc./Retarded Children 200 6/97 7/02
N.Y.C. Dept. of Transportation 300 1/97 M-T-M
Edisys Group 401 10/92 9/02
Mayfair Group dba D.P.G 402 10/95 4/03
BVE Productions 500 4/90 4/00
Edisys Group 501 5/97 9/02
Audio Video Sources 502 1/92 3/00
Centennial Electronics 506 3/97 2/02
Hillstreet Security 507 5/96 4/00
Tel-Air Communications 508 5/94 7/04
Arctic Electric Corp. 513 9/95 12/02
Barkley Kalpak Associates 515 7/96 7/99
Broadway To Go 517 11/96 11/99
D-1
<PAGE>
Allied Protective Services 519 10/94 9/00
Apollo & Assocs. Product 520 1/08 12/02
Lancit Media Production 601 10/85 9/98
Lancit Media Production 602 6/87 9/98
Lancit Media Production 603 12/93 9/98
Lancit Media Production 604 4/94 9/98
Lancit Media Production 605 3/95 9/98
D-2
<PAGE>
Kenneth Cole Productions, Inc.
Exhibit 21.01
List of Subsidiaries
State of Incorporation
Kenneth Cole Productions, Inc. New York
Cole Amsterdam, Inc. Delaware
Cole Aspen, Inc. Delaware
Cole Boca, Inc. Florida
Cole Broadway, Inc. New York
Cole Cabazon, Inc. California
Cole Carlsbad, Inc. Delaware
Cole Century City, Inc. California
Cole Chestnut, Inc. Delaware
Cole Clinton, Inc. Connecticut
Cole Copley, Inc. Massachusetts
Cole Dadeland, Inc. Florida
Cole Destin, Inc. Florida
Cole Fashion Valley, Inc. Delaware
Cole Forum, Inc. Delaware
Cole Franklin, Inc. Delaware
Cole Garden State, Inc. Delaware
Cole Georgetown, Inc. District of Columbia
Cole Grand Central, Inc. Delaware
Cole Grant, Inc. Delaware
Cole Honolulu, Inc. Delaware
Cole Houston, Inc. Delaware
Cole Las Vegas, Inc. Delaware
Cole Leesburg, Inc. Delaware
Cole Michigan Avenue, Inc. Delaware
Cole Napa, Inc. California
Cole New Orleans, Inc. Delaware
Cole Newbury, Inc. Massachusetts
Cole NorthPark, Inc. Texas
Cole Oakbrook, Inc. Delaware
Cole Orlando, Inc. Delaware
Cole Pentagon, Inc. Virginia
Cole Phipps, Inc. Georgia
Cole Prussia, Inc. Pennsylvania
<PAGE>
Cole Reading Outlet, Inc. Pennsylvania
Cole Riverhead, Inc. Delaware
Cole Roosevelt, Inc. New York
Cole Santa Monica, Inc. Delaware
Cole Sawgrass, Inc. Florida
Cole Scottsdale, Inc. Delaware
Cole SFC, LLC Delaware
Cole Short Hills, Inc. New Jersey
Cole Somerset, Inc. Michigan
Cole South Beach, Inc. Florida
Cole Stanford, Inc. California
Cole Tyson, Inc. Virginia
Cole Venetian, LLC Delaware
Cole Waikele, Inc. New York
Cole Walnut Street, Inc. Delaware
Cole Westchester, Inc. New York
K.C.P.L., Inc. Delaware
Kenneth Cole Catalog, Inc. Virginia
Kenneth Cole Financial Services, Inc. New Jersey
Kenneth Cole Gilroy, Inc. California
Kenneth Cole Services, Inc. Delaware
Kenneth Cole Woodbury, Inc. Delaware
Kenneth Cole, Inc. New York
Riviera Holding, LLC Delaware
Cole Amsterdam, B.V. Amsterdam
Kenth Ltd. Hong Kong
Exhibit 23.01
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in Registration Statement (Form S-8
No. 33-92094) pertaining to the 1994 Stock Option Plan of Kenneth Cole
Productions, Inc. of our report dated February 25, 1999, with respect to the
consolidated financial statements and schedules of Kenneth Cole Productions,
Inc., included Kenneth Cole Productions, Inc.'s Annual Report (Form 10-K) for
the year ended December 31, 1998.
ERNST & YOUNG LLP
New York, New York
March 31, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE KENNETH
COLE PRODUCTIONS, INC. CONSOLIDATED BALANCE SHEET AS OF DECEMBER 31, 1998, AND
THE CONSOLIDATED STATEMENT OF INCOME FOR THE TWELVE MONTHS ENDED DECEMBER 31,
1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 13,824
<SECURITIES> 0
<RECEIVABLES> 24,551
<ALLOWANCES> (125)
<INVENTORY> 32,957
<CURRENT-ASSETS> 73,660
<PP&E> 24,343
<DEPRECIATION> 8,172
<TOTAL-ASSETS> 96,680
<CURRENT-LIABILITIES> 17,016
<BONDS> 0
0
0
<COMMON> 134
<OTHER-SE> 78,523
<TOTAL-LIABILITY-AND-EQUITY> 96,680
<SALES> 219,781
<TOTAL-REVENUES> 228,138
<CGS> 129,403
<TOTAL-COSTS> 129,403
<OTHER-EXPENSES> 72,145
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (404)
<INCOME-PRETAX> 26,994
<INCOME-TAX> 10,663
<INCOME-CONTINUING> 16,331
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 16,331
<EPS-PRIMARY> 1.24
<EPS-DILUTED> 1.20
</TABLE>
