<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM 10-Q
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED
September 28, 1996 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
_______________________ TO _______________________
COMMISSION FILE NUMBER 1-13474
THE FLORSHEIM SHOE COMPANY
(Exact name of registrant as specified in its charter)
Delaware 36-3520923
------------------------------------------------ -------------------
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
130 South Canal Street, Chicago, Illinois 60606
------------------------------------------------ -------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 559-2500
--------------
Not Applicable
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirement for the past 90 days. Yes [x] No [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Sections 12, 13, or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes [x] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
8,346,051 Shares as of October 8, 1996
--------------------------------------
================================================================================
<PAGE> 2
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Financial Statements for the quarter ended September 28, 1996.
Consolidated Balance Sheet:
September 28, 1996
December 30, 1995
Consolidated Statement of Operations:
Three Months Ended September 28, 1996
Three Months Ended September 30, 1995
Nine Months Ended September 28, 1996
Nine Months Ended September 30, 1995
Consolidated Statement of Cash Flows:
Nine Months Ended September 28, 1996
Nine Months Ended September 30, 1995
Notes to Consolidated Financial Statements
The financial statements are unaudited, but include all adjustments
(consisting of normal recurring adjustments) which the management of the
Company considers necessary for a fair presentation of the period. The
results for the three months and the nine months ended September 28,
1996 are not necessarily indicative of the results to be expected for
the full year.
2
<PAGE> 3
THE FLORSHEIM SHOE COMPANY
CONSOLIDATED BALANCE SHEET
(Dollars in thousands)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Unaudited
-----------
December 30, September 28,
ASSETS 1995 1996
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $5,249 $14,052
Receivables, less allowances of $2,284 at
December 30, 1995 and $2,475 at September 28, 1996 36,113 33,483
Inventories 84,684 67,797
Deferred tax assets, net 10,027 10,583
Prepaid expenses and other current assets 4,091 4,800
- ------------------------------------------------------------------------------------------------------------------------
Total current assets 140,164 130,715
Property, plant and equipment 34,388 35,291
Less accumulated depreciation 12,646 15,625
- ------------------------------------------------------------------------------------------------------------------------
Net property, plant and equipment 21,742 19,666
Deferred tax assets, net 6,144 5,703
Other assets 18,271 17,823
- ------------------------------------------------------------------------------------------------------------------------
$186,321 $173,907
- ------------------------------------------------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------------------------------------------------------------------------------------------
Current liabilities:
Notes payable $94 $166
Accounts payable 11,492 10,790
Accrued expenses 13,088 13,996
Accrued interest expense 3,082 674
Accrued income taxes payable 486 369
- ------------------------------------------------------------------------------------------------------------------------
Total current liabilities 28,242 25,995
Long-term debt 80,126 69,450
Other long-term liabilities 22,885 23,278
- ------------------------------------------------------------------------------------------------------------------------
131,253 118,723
Shareholders' equity:
Preferred stock, without par value, 2,000,000 shares
authorized and no shares issued and outstanding - -
Common stock, 20,000,000 shares authorized,
without par value, $1.00 stated value, 8,346,051 shares
issued and outstanding 8,346 8,346
Paid-in capital 50,295 50,295
Accumulated translation adjustment (251) 216
Retained earnings (deficit) (3,322) (3,673)
- ------------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 55,068 55,184
- ------------------------------------------------------------------------------------------------------------------------
$186,321 $173,907
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 4
THE FLORSHEIM SHOE COMPANY
CONSOLIDATED STATEMENT OF OPERATIONS
(Dollars in thousands except per share data)
(Unaudited)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
Three months Three months
ended ended
September 30, September 28,
1995 1996
- ------------------------------------------------------------------------------
<S> <C> <C>
Net sales $67,992 $60,107
Cost of sales 38,531 31,965
- ------------------------------------------------------------------------------
Gross profit 29,461 28,142
Selling, general
and administrative expenses 28,244 25,650
- ------------------------------------------------------------------------------
Earnings from operations 1,217 2,492
Interest expense, net 3,199 2,361
Other income, net (21) 13
- ------------------------------------------------------------------------------
Earnings (loss) before income taxes (2,003) 144
Income tax expense (benefit) (701) 52
- ------------------------------------------------------------------------------
Net earnings (loss) $(1,302) $92
- ------------------------------------------------------------------------------
Net earning (loss) per common share $(0.16) $0.01
- ------------------------------------------------------------------------------
Weighted average common shares outstanding 8,346,051 -
Weighted average common shares /
equivalents outstanding - 8,390,211
- ------------------------------------------------------------------------------
</TABLE>
4
<PAGE> 5
THE FLORSHEIM SHOE COMPANY
CONSOLIDATED STATEMENT OF OPERATIONS
(Dollars in thousands except per share data)
(Unaudited)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Nine months Nine months
ended ended
September 30, September 28,
1995 1996
- -----------------------------------------------------------------------------------
<S> <C> <C>
Net sales $207,982 $180,992
Cost of sales 116,159 97,067
- -----------------------------------------------------------------------------------
Gross profit 91,823 83,925
Selling, general
and administrative expenses 84,593 78,538
- -----------------------------------------------------------------------------------
Earnings from operations 7,230 5,387
Interest expense, net 10,188 7,552
Other income, net 47 1,617
- -----------------------------------------------------------------------------------
Loss before income taxes (2,911) (548)
Income tax benefit (1,019) (197)
- -----------------------------------------------------------------------------------
Net loss $(1,892) $(351)
- -----------------------------------------------------------------------------------
Net loss per common share $(0.23) $(0.04)
- -----------------------------------------------------------------------------------
Weighted average common shares outstanding 8,346,051 8,346,051
- -----------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 6
THE FLORSHEIM SHOE COMPANY
CONSOLIDATED STATEMENT OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Nine months Nine months
ended ended
September 30, September 28,
1995 1996
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $(1,892) $(351)
Adjustments to reconcile net earnings to net cash
provided by (used in) operating activities:
(excluding assets/liabilities related to
the sale of assets of Hy-Test):
Loss (gain) on disposal of assets 48 (2,144)
Depreciation and amortization 3,630 3,467
Deferred taxes (1,400) (375)
Noncash interest expense 692 664
(Increase) decrease in receivables 4,372 (6,157)
Decrease in inventories 14,002 5,629
Increase in prepaid expenses and other assets (3,044) (443)
Decrease in accounts payable, accrued
interest expense and other accrued expenses (3,338) (1,718)
Increase in other long-term liabilities 279 393
- -------------------------------------------------------------------------------------------------------------------
Net cash provided (used) by operating activities 13,349 (1,035)
- -------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Proceeds from sale of assets of Hy-Test,
net of transaction costs - 22,600
Proceeds from the disposal of assets 157 420
Additions to property, plant and equipment (3,807) (2,578)
- --------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) investing activities (3,650) 20,442
- --------------------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Net increase in notes and loans payable 38 72
Payments of long-term debt (11,721) (10,676)
- --------------------------------------------------------------------------------------------------------------------
Net cash used in financing activities (11,683) (10,604)
- --------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents (1,984) 8,803
Cash and cash equivalents at beginning of period 4,872 5,249
- --------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of period $2,888 $14,052
- --------------------------------------------------------------------------------------------------------------------
Supplemental disclosure:
Cash payments for income taxes, net $1,464 $1,058
Cash payments for interest $10,113 $9,296
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE> 7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Nine months ended September 28, 1996
(Dollars in thousands)
(Unaudited)
(1) DISTRIBUTION
Effective November 17, 1994, The Florsheim Shoe Company
(Florsheim or the Company) became an independent public company.
Furniture Brands International, Inc., formerly known as INTERCO
INCORPORATED, its former parent company and sole stockholder,
distributed all of the Company's common stock to existing
INTERCO shareholders at a rate of one share of Florsheim common
stock for every six shares of INTERCO common stock (the
Distribution). In connection with the Distribution, Florsheim
issued $85,000 in 12-3/4% Senior Notes due 2002 (Senior Notes)
and entered into a $75,000 secured credit facility (credit
facility). Florsheim used the proceeds from the Senior Notes
and $25,000 borrowed under the credit facility to pay financing
expenses and repay its share of outstanding joint and several
indebtedness issued in connection with the 1992 plan of
reorganization of INTERCO and its principal subsidiaries.
(2) SALE OF ASSETS OF HY-TEST SAFETY SHOE DIVISION
On March 22, 1996, the Company completed the sale of the assets
of its Hy-Test safety shoe division, including its Kirksville,
Missouri factory, to Wolverine World Wide, Inc., for an all cash
sale price of approximately $22,750. A portion of this cash was
used to reduce to zero the $17.6 million of outstanding
borrowings under the Company's bank credit facility as of the
sale date. The balance of the proceeds are available for
investment in the business and for further debt reduction.
Annual net sales of the sold business were $38,659 for the
twelve months ended December 30, 1995. The net gain on sale of
$1,850 is included in other income (expense), net.
(3) NET EARNINGS (LOSS) PER COMMON SHARE
For the three months ended September 28, 1996, net earnings per
share data was computed using the average weighted shares and
common stock equivalents outstanding.
For the nine months ended September 28, 1996, and for the three
months and nine months ended September 30, 1995, net loss per
share data was computed using the average weighted shares
outstanding. Common stock equivalents were not used due to the
antidilutive effect on the computation.
7
<PAGE> 8
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Nine months ended September 28, 1996
(Dollars in thousands)
(Unaudited)
(4) INVENTORIES
Inventories are summarized as follows:
<TABLE>
<CAPTION>
=========================================================
December 30, September 28,
1995 1996
---------------------------------------------------------
<S> <C> <C>
Retail merchandise $45,543 $42,120
Finished Products 29,186 18,670
Work-in-process 1,418 998
Raw materials 8,537 6,009
------- -------
$84,684 $67,797
======= =======
=========================================================
</TABLE>
(5) SUPPLEMENTAL GUARANTOR FINANCIAL INFORMATION
In connection with the Distribution, Florsheim issued $85,000,
of which $69,450 are outstanding at September 28, 1996, of
12-3/4% Senior Notes due 2002. The Senior Notes are guaranteed,
on a joint and several basis, by all domestic subsidiaries of
Florsheim.
The following condensed consolidating information presents:
1. Condensed consolidating balance sheets as of
December 30, 1995 and September 28, 1996, condensed
consolidating statements of operations for the three
months ended September 30, 1995 and the three months ended
September 28, 1996, condensed consolidating statements of
operations and statements of cash flows for the nine
months ended September 30, 1995 and the nine months ended
September 28, 1996, of (a) Florsheim, the parent, (b) the
guarantor subsidiaries, (c) the nonguarantor subsidiaries
and (d) Florsheim on a consolidated basis.
2. Florsheim, the parent, with the investments in
the guarantor and nonguarantor subsidiaries accounted for
on the equity method, and
3. Elimination entries necessary to consolidate
Florsheim, the parent, with the guarantor and nonguarantor
subsidiaries.
There are no restrictions on the parent or guarantor subsidiaries to
obtain funds from the subsidiaries by dividend or loan.
8
<PAGE> 9
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For nine months ended September 28, 1996
(Continued)
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Condensed Consolidating Balance Sheet
December 30, 1995
- -------------------------------------------------------------------------------------------------------------------------------
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Assets:
Current assets:
Cash and cash
equivalents $2,658 $1,131 $1,460 $- $5,249
Receivables 15,756 10,490 8,906 961 36,113
Inventories 45,250 28,751 10,683 - 84,684
Prepaid expenses and
other current assets 11,032 1,450 1,636 - 14,118
- -------------------------------------------------------------------------------------------------------------------------------
Total current assets 74,696 41,822 22,685 961 140,164
Net property, plant and
equipment 14,473 4,640 2,629 - 21,742
Other assets 22,231 1,755 504 (75) 24,415
Investments in subsidiaries 65,006 - - (65,006) -
- -------------------------------------------------------------------------------------------------------------------------------
Total assets $176,406 $48,217 $25,818 $(64,120) $186,321
- -------------------------------------------------------------------------------------------------------------------------------
Liabilities and Shareholders' Equity:
Current liabilities:
Notes payable - - 94 - 94
Accounts payable 5,133 2,469 2,929 961 11,492
Accrued expenses
and other current
liabilities 13,194 874 2,588 - 16,656
- -------------------------------------------------------------------------------------------------------------------------------
Total current liabilities 18,327 3,343 5,611 961 28,242
Long-term debt, less
current maturities 80,126 - - - 80,126
Other long-term liabilities 22,885 - 75 (75) 22,885
Shareholders' equity 55,068 44,874 20,132 (65,006) 55,068
- -------------------------------------------------------------------------------------------------------------------------------
Total liabilities and
shareholders' equity $176,406 $48,217 $25,818 $(64,120) $186,321
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE> 10
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For nine months ended September 28, 1996
(Continued)
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
==========================================================================================================================
Condensed Consolidating Balance Sheet
September 28, 1996
==========================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Assets:
Current assets:
Cash and cash
equivalents $ 11,169 $ 811 $ 2,072 $ - $ 14,052
Receivables 29,697 129 8,126 (4,469) 33,483
Inventories 35,306 19,902 12,589 - 67,797
Prepaid expenses and
other current assets 13,347 828 1,208 - 15,383
- --------------------------------------------------------------------------------------------------------------------------
Total current assets 89,519 21,670 23,995 (4,469) 130,715
Net property, plant and
equipment 12,832 3,909 2,925 - 19,666
Other assets 18,434 5,815 533 (1,256) 23,526
Investments in subsidiaries 45,155 - - (45,155) -
- --------------------------------------------------------------------------------------------------------------------------
Total assets $165,940 $31,394 $27,453 $(50,880) $173,907
==========================================================================================================================
Liabilities and Shareholders' Equity:
Current liabilities:
Note payable - - 166 - 166
Accounts payable 8,306 2,305 4,648 (4,469) 10,790
Accrued expenses
and other current
liabilities 9,722 2,016 3,301 - 15,039
- --------------------------------------------------------------------------------------------------------------------------
Total current liabilities 18,028 4,321 8,115 (4,469) 25,995
Long-term debt, less
current maturities 69,450 - - - 69,450
Other long-term liabilities 23,278 - 1,256 (1,256) 23,278
Shareholders' equity 55,184 27,073 18,082 (45,155) 55,184
- --------------------------------------------------------------------------------------------------------------------------
Total liabilities and
shareholders' equity $165,940 $31,394 $27,453 $(50,880) $173,907
==========================================================================================================================
</TABLE>
10
<PAGE> 11
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For nine months ended September 28, 1996
(Continued)
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
====================================================================================================================================
Condensed Consolidating Statements of Operations
For three months ended September 30, 1995
====================================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $43,056 $19,873 $11,881 $(6,818) $67,992
Cost of sales 26,281 11,417 7,651 (6,818) 38,531
- ------------------------------------------------------------------------------------------------------------------------------------
Gross profit 16,775 8,456 4,230 - 29,461
Selling, general and
administrative expenses 16,623 7,463 4,158 - 28,244
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings from operations 152 993 72 - 1,217
Interest expense 3,199 - - - 3,199
Equity in earnings of subsidiaries,
net of tax 574 - - (574) -
Other income (expense), net 43 10 (74) - (21)
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings (loss) before
income taxes (2,430) 1,003 (2) (574) (2,003)
Income tax expense (benefit) (1,128) 403 24 - (701)
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings (loss) $(1,302) $ 600 $ (26) $ (574) $(1,302)
====================================================================================================================================
For three months ended September 28, 1996
====================================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------------------------------------------------------------
Net sales $41,625 $11,493 $11,675 $(4,686) $60,107
Cost of sales 24,193 5,944 6,514 (4,686) 31,965
- ------------------------------------------------------------------------------------------------------------------------------------
Gross profit 17,432 5,549 5,161 - 28,142
Selling, general and
administrative expenses 16,168 5,270 4,212 - 25,650
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings from operations 1,264 279 949 - 2,492
Interest expense 2,361 - - - 2,361
Equity in earnings of subsidiaries,
net of tax 1,411 - - (1,411) -
Other income (expense), net 3 - 10 - 13
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings (loss) before
income taxes 317 279 959 (1,411) 144
Income tax expense (benefit) 225 (408) 235 - 52
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings (loss) $ 92 $ 687 $ 724 $(1,411) $ 92
====================================================================================================================================
</TABLE>
11
<PAGE> 12
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For nine months ended September 28, 1996
(Continued)
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
====================================================================================================================================
Condensed Consolidating Statements of Operations
For nine months ended September 30, 1995
====================================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $133,377 $63,516 $30,925 $(19,836) $207,982
Cost of sales 79,157 38,064 18,774 (19,836) 116,159
- ------------------------------------------------------------------------------------------------------------------------------------
Gross profit 54,220 25,452 12,151 - 91,823
Selling, general and
administrative expenses 50,320 22,471 11,802 - 84,593
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings from operations 3,900 2,981 349 - 7,230
Interest expense 10,188 - - - 10,188
Equity in earnings of subsidiaries,
net of tax 1,901 - - (1,901) -
Other income (expense), net 190 30 (173) - 47
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings (loss) before
income taxes (4,197) 3,011 176 (1,901) (2,911)
Income tax expense (benefit) (2,305) 1,199 87 - (1,019)
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings (loss) $ (1,892) $ 1,812 $ 89 $ (1,901) $ (1,892)
====================================================================================================================================
For nine months ended September 28, 1996
====================================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------------------------------------------------------------
Net sales $125,826 $40,612 $31,456 $ (16,902) $180,992
Cost of sales 73,697 22,280 17,992 (16,902) 97,067
- ------------------------------------------------------------------------------------------------------------------------------------
Gross profit 52,129 18,332 13,464 - 83,925
Selling, general and
administrative expenses 48,469 17,827 12,242 - 78,538
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings from operations 3,660 505 1,222 - 5,387
Interest expense 7,552 - - - 7,552
Equity in earnings of subsidiaries,
net of tax 1,076 - - (1,076) -
Other income (expense), net 1,596 (12) 33 - 1,617
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings (loss) before
income taxes (1,220) 493 1,255 (1,076) (548)
Income tax expense (benefit) (869) 237 435 - (197)
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings (loss) $ (351) $ 256 $ 820 $ (1,076) $ (351)
====================================================================================================================================
</TABLE>
12
<PAGE> 13
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For nine months ended September 28, 1996
(Continued)
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
======================================================================================================================
Condensed Consolidating Statements of Cash Flows
For nine months ended September 30, 1995
======================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities $13,430 $(936) $1,788 $(933) $13,349
- ----------------------------------------------------------------------------------------------------------------------
Cash flows from investing
activities:
Proceeds from the
disposal of assets 157 - - - 157
Additions to property,
plant and equipment (2,736) (512) (559) - (3,807)
- ----------------------------------------------------------------------------------------------------------------------
Net cash used in investing
activities (2,579) (512) (559) - (3,650)
- ----------------------------------------------------------------------------------------------------------------------
Cash flows from financing
activities:
Net increase in notes and loans payable - - 38 - 38
Net capital contribution
from (to) Parent 27 977 (1,937) 933 -
Payment of long-term debt (11,721) - - - (11,721)
- ----------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in)
financing activities (11,694) 977 (1,899) 933 (11,683)
- ----------------------------------------------------------------------------------------------------------------------
Net decrease in cash
and cash equivalents (843) (471) (670) - (1,984)
Cash and cash equivalents
at beginning of period 2,157 1,061 1,654 - 4,872
- ----------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents
at end of period $ 1,314 $ 590 $ 984 $ - $ 2,888
======================================================================================================================
</TABLE>
13
<PAGE> 14
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For nine months ended September 28, 1996
(Continued)
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
==============================================================================================================================
Condensed Consolidating Statements of Cash Flows
For nine months ended September 28, 1996
==============================================================================================================================
Guarantor Nonguarantor
Parent subsidiaries subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities
(excluding assets/liabilities related
to the sale of assets of Hy-Test) $ (3,152) $(1,388) $4,721 $(1,216) $(1,035)
- ------------------------------------------------------------------------------------------------------------------------------
Cash flows from investing
activities:
Proceeds from the sale of assets of
Hy-Test, net of transaction costs 22,600 - - - 22,600
Proceeds from the
disposal of assets 420 - - - 420
Additions to property,
plant and equipment (1,148) (586) (844) - (2,578)
- ------------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) - -
investing activities 21,872 (586) (844) - 20,442
- ------------------------------------------------------------------------------------------------------------------------------
Cash flows from financing
activities:
Net increase in notes and loans payable - - 72 - 72
Net capital contribution
from (to) Parent 467 1,654 (3,337) 1,216 -
Payment of long-term debt (10,676) - - - (10,676)
- ------------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in)
financing activities (10,209) 1,654 (3,265) 1,216 (10,604)
- ------------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash
and cash equivalents 8,511 (320) 612 - 8,803
Cash and cash equivalents
at beginning of period 2,658 1,131 1,460 - 5,249
- ------------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents
at end of period $ 11,169 $ 811 $2,072 $ - $14,052
==============================================================================================================================
</TABLE>
14
<PAGE> 15
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Dollars in thousands)
OVERVIEW
The Florsheim Shoe Company (Florsheim or the Company), founded in 1892,
designs, markets, manufactures, and sources a diverse and extensive range of
products in the middle to upper price range of the men's quality footwear
market. Florsheim distributes its products in more than 6,000 department and
specialty store locations worldwide and through 348 company-operated specialty
stores and outlet stores as of September 28, 1996.
Effective November 17, 1994, Florsheim became an independent public company
when Furniture Brands International, Inc., formerly known as INTERCO
INCORPORATED, its former parent company and sole stockholder, distributed all
of the Company's common stock to existing INTERCO shareholders at a rate of one
share of Florsheim common stock for every six shares of INTERCO common stock
(the Distribution). In connection with the Distribution, Florsheim issued
$85,000 in 12-3/4% Senior Notes due 2002 (Senior Notes) and entered into a
$75,000 secured credit facility (credit facility). Florsheim used the proceeds
from the Senior Notes and $25,000 borrowed under the credit facility to pay
financing expenses and repay its share of the outstanding joint and several
indebtedness issued in connection with the 1992 plan of reorganization of
INTERCO and its principal subsidiaries.
On March 22, 1996, the Company completed the sale of the assets of its Hy-Test
safety shoe division, including its Kirksville, Missouri factory, to Wolverine
World Wide, Inc., for an all cash sale price of approximately $22,750. Annual
net sales of the sold business were $38,659 for the twelve months ended
December 30, 1995.
15
<PAGE> 16
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 28, 1996 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1995.
Historical Comparisons
The following tables set forth, for the periods indicated, certain historical
operating data, expressed in thousands of dollars and as a percentage of net
sales, and retail store information.
<TABLE>
<CAPTION>
===============================================================================================
Three months ended
------------------------------------------------------
(Dollars in thousands) September 30, 1995 September 28, 1996
- -----------------------------------------------------------------------------------------------
Amount % Amount %
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales:
U.S. Wholesale $18,456 27.1 % $19,854 33.0 %
U.S. Retail 29,422 43.3 27,906 46.4
International (including
exports from U.S.) 12,529 18.4 12,347 20.5
- -----------------------------------------------------------------------------------------------
Subtotal 60,407 88.8 60,107 100.0
Hy- Test (1) 7,585 11.2 - -
- -----------------------------------------------------------------------------------------------
Total net sales $67,992 100.0 % $60,107 100.0 %
- -----------------------------------------------------------------------------------------------
Percent change in same store
sales (2) (5.1)% (2.9)%
EBITDA (3) $ 2,461 3.6 % $ 3,630 6.0 %
- -----------------------------------------------------------------------------------------------
Interest expense, net $ 3,199 $ 2,361
Less: non-cash interest 236 221
---------- --------
Cash interest expense, net $ 2,963 $ 2,140
========== ========
- -----------------------------------------------------------------------------------------------
Number of retail stores:
U.S. specialty 219 205
U.S. outlets 86 90
International 55 53
---------- --------
Total 360 348
========== ========
===============================================================================================
</TABLE>
(1) The Hy-Test safety shoe business was sold on March 22, 1996.
(2) Includes only those sales figures for U.S. specialty
stores that have been in operation for at least twelve full
months. Percentage change reflects figures for period
depicted as compared to the figures from the preceding period
of comparable length.
(3) Earnings before interest expense, income taxes,
depreciation and amortization, and other income (expense),
net.
16
<PAGE> 17
<TABLE>
<CAPTION>
==============================================================================================
Three months ended
-----------------------------------------
September 30, September 28,
1995 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Operations data (as a percent of net sales)
Net sales 100.0 % 100.0 %
Gross profit 43.3 46.8
Selling, general, and administrative expenses 41.5 42.7
Earnings from operations 1.8 4.1
Interest expense 4.7 3.9
Net earnings (loss) (1.9) 0.2
==============================================================================================
</TABLE>
Net sales for the three months ended September 28, 1996 (Third Quarter 1996)
were $60,107, down $7,885, or 11.6%, as compared to the three months ended
September 30, 1995 (Third Quarter 1995). Of the decrease, $7,585, or 11.2% is
attributed to the Hy-Test division, which was sold on March 22, 1996. U.S.
wholesale net sales increased $1,398, or 7.6%, due primarily to gains from
increased unit volume combined with an increase in average selling price per
unit. U.S. retail net sales decreased $1,516, or 5.2%, as additional sales
from stores opened during or after the Third Quarter 1995 were more than offset
by store closings and Third Quarter 1996 same store sales decreases at U.S.
specialty stores of 2.9%. International sales decreased $182, or 1.5%.
Gross profit margin for Third Quarter 1996 was 46.8% of net sales, as compared
to 43.3% of net sales for Third Quarter 1995. The increase was due to a mix
change (reflecting the sale of Hy-Test) to a higher percentage of retail sales
and costs decreases due to the Company's expense reduction programs and was
partially offset by increased price promotion activity.
Selling, general and administrative expenses for Third Quarter 1996 were
$25,650, a decrease of $2,594, or 9.2%, from Third Quarter 1995. Selling,
general and administrative expenses for Third Quarter 1996 were 42.7% of net
sales, an increase from 41.5% of net sales for Third Quarter 1995 due to lower
sales volume and a mix change reflecting the sale of Hy-Test. Expense
decreases due to the Company's expense reduction programs were partially offset
by increased selling costs and spending on sales growth opportunities.
Earnings from operations for Third Quarter 1996 were $2,492, an increase of
$1,275, or 104.8%, from Third Quarter 1995, and EBITDA for Third Quarter 1996
was $3,630 an increase of $1,169, or 47.5%, from Third Quarter 1995. Earnings
from operations for Third Quarter 1996 were 4.1% of net sales, as compared to
1.8% of net sales for Third Quarter 1995, and EBITDA for Third Quarter 1996 was
6.0% of net sales, as compared to 3.6% net sales for Third Quarter 1995. The
increase in earnings from operations was primarily due to the effect of the
Company's expense reduction programs.
Interest expense for Third Quarter 1996 was $2,361, as compared to the Third
Quarter 1995 amount of $3,199. This decrease is due to the fact that there
were no outstanding borrowings under the credit facility during the Third
Quarter 1996 and the lower average amount of Senior Notes outstanding during
the Third Quarter 1996.
The net earnings per share for Third Quarter were $ 0.01 per share, an
improvement of $ 0.17 per share from the Third Quarter 1995. The improvement
is primarily due to the effect of the Company's expense reduction programs and
the reduction in interest expense.
17
<PAGE> 18
Pro forma Comparisons
The following pro forma financial data reflects the sale of the assets of
Hy-Test as if the sale had occurred as of January 1, 1995 for pro forma
statement of operations purposes. The pro forma data excludes the net sales
and direct costs of the Hy-Test division and the Hy-Test operating profit
contribution to central overhead costs. Management believes that the
assumptions used provide a reasonable basis on which to present the pro forma
condensed financial data. The pro forma data are presented for informational
purposes only and are not necessarily indicative of the results that would have
been achieved had the transaction actually been consummated as of such date.
<TABLE>
<CAPTION>
===========================================================================================
Statement of Operations Data Three months ended
------------------------------------------------
Pro forma
September 30, September 28,
1995 1996
- -------------------------------------------------------------------------------------------
Amount % Amount %
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 60,407 100.0% $ 60,107 100.0 %
Gross profit 27,086 44.8 28,142 46.8
Selling, general, and
administrative expenses 26,562 44.0 25,650 42.7
Earnings from operations 524 0.9 2,492 4.1
EBITDA 1,728 2.9 3,630 6.0
===========================================================================================
</TABLE>
Net sales for Third Quarter 1996 were $300 (0.5%) lower than for Third Quarter
1995 pro forma net sales. As noted above, U.S. wholesale sales increased but
were offset due to same store sale decreases at Company-operated stores and
fewer stores.
Earnings from operations and EBITDA for Third Quarter 1996 were $1,968 and
$1,902, respectively, greater than Third Quarter 1995 pro forma earnings from
operations and pro forma EBITDA. As noted above, the effect of the expense
reduction programs were partially offset by increased selling costs and
spending on sales growth opportunities.
The pro forma operations data percentages reflect the elimination of the
Hy-Test operating profit contribution to central overhead. As the result of
the Hy-Test asset sale, the Company's sales mix shifts to a higher percentage
of the total sales from the Company-operated retail stores. Accordingly, the
pro forma gross profit increases as a percent of sales as compared to
historical results, with an offsetting increase in the pro forma selling,
general and administrative expenses as a percent of sales as compared to
historical results.
18
<PAGE> 19
NINE MONTHS ENDED SEPTEMBER 28, 1996 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1995.
Historical Comparisons
The following tables set forth, for the periods indicated, certain historical
operating data, expressed in thousands of dollars and as a percentage of net
sales, and retail store information.
<TABLE>
<CAPTION>
=========================================================================================
Nine months ended
---------------------------------------------------------------
(Dollars in thousands) September 30, 1995 September 28, 1996
- -----------------------------------------------------------------------------------------
Amount % Amount %
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales:
U.S. Wholesale $ 58,343 28.1 % $ 55,750 30.8 %
U.S. Retail 88,874 42.7 84,901 46.9
International (including
exports from U.S.) 32,445 15.6 33,398 18.5
- -----------------------------------------------------------------------------------------
Subtotal 179,662 86.4 174,049 96.2
Hy-Test(1) 28,320 13.6 6,943 3.8
- -----------------------------------------------------------------------------------------
Total net sales $207,982 100.0 % $180,992 100.0 %
- -----------------------------------------------------------------------------------------
Percentage change in same store
sales(2) (7.0)% (2.7)%
EBITDA(3) $ 10,860 5.2 % $ 8,854 4.9 %
- -----------------------------------------------------------------------------------------
Interest expense, net $ 10,188 $ 7,552
Less: non-cash interest 692 664
--------- ---------
Cash interest expense, net $ 9,496 $ 6,888
========= =========
=========================================================================================
</TABLE>
(1) The Hy-Test safety shoe business was sold on March 22, 1996.
(2) Includes only those sales figures for U.S. specialty
stores that have been in operation for at least twelve full
months. Percentage change reflects figures for period
depicted as compared to the figures from the preceding period
of comparable length.
(3) Earnings before interest expense, income taxes,
depreciation and amortization, and other income (expense),
net.
<TABLE>
<CAPTION>
=========================================================================================
Nine months ended
---------------------------------------------
September 30, September 28,
Operations data (as a percent of net sales) 1995 1996
- -----------------------------------------------------------------------------------------
<S> <C> <C>
Net sales 100.0 % 100.0 %
Gross profit 44.1 46.4
Selling, general, and administrative expenses 40.7 43.4
Earnings from operations 3.5 3.0
Interest expense 4.9 4.2
Net loss (0.9) (0.2)
=========================================================================================
</TABLE>
Net sales for the nine months ended September 28, 1996 (Nine Months 1996) were
$180,992, down $26,990, or 13.0%, as compared to the nine months ended
September 30, 1995 (Nine Months 1995). Of the decrease, $21,377, or 10.3%,
19
<PAGE> 20
is attributed to the Hy-Test division, which was sold on March 22, 1996. U.S.
wholesale net sales decreased $2,593, or 4.4%, due to decreases in unit volume
reflecting difficult market conditions. U.S. retail net sales decreased
$3,973, or 4.5%, as additional sales from stores opened during or after the
Nine Months 1995 were more than offset by store closings and Nine Months 1996
same store sales decreases at U.S. specialty stores of 2.7%. International
sales increased $953, or 2.9%, with the increase due to increased sales at
company-operated stores and expanded wholesale distribution.
Gross profit margin for the Nine Months 1996 was 46.4% of net sales, as
compared to 44.1% of net sales for the Nine Months 1995. The increase was due
to a mix change (reflecting the sale of Hy-Test) to a higher percentage of
retail sales and costs decreases due to the Company's expense reduction
programs and was partially offset by increased price promotion activity.
Selling, general and administrative expenses for the Nine Months 1996 were
$78,538, a decrease of $6,055, or 7.2%, from the Nine Months 1995. Selling,
general and administrative expenses for the Nine Months 1996 were 43.4% of net
sales, an increase from 40.7% of net sales for the Nine Months 1995 due to
lower sales volume and a mix change reflecting the sale of Hy-Test. Expense
decreases due to the Company's expense reduction programs were partially offset
by increased selling costs and spending on sales growth opportunities.
Earnings from operations for the Nine Months 1996 were $5,387, a decrease of
$1,843, or 25.5%, from the Nine Months 1995, and EBITDA for the Nine Months
1996 was $8,854, a decrease of $2,006, or 18.5%, from the Nine Months 1995.
Earnings from operations for the Nine Months 1996 were 3.0% of net sales, as
compared to 3.5% of net sales for the Nine Months 1995, and EBITDA for the Nine
Months 1996 was 4.9% of net sales, as compared to 5.2% of net sales for the Nine
Months 1995. The decrease was primarily due to sales volume decreases and the
elimination of the operating profit contribution by Hy-Test to central overhead
offset by the effect of the Company's expense reduction programs.
Interest expense for the Nine Months 1996 was $7,552, as compared to the Nine
Months 1995 amount of $10,188. This decrease is due to the lower average
amount of Senior Notes outstanding and lower average outstanding borrowings
under the credit facility during the Nine Months 1996 as compared to the
average outstanding during the Nine Months 1995.
The loss per share for the Nine Months 1996 was $0.04 per share, an improvement
of $ 0.19 per share from the Nine Months 1995. The improvement is primarily
due to the reduction in interest expense partially offset by the reduction in
earnings from operations due to sales volume decreases.
Pro forma Comparisons
The following pro forma financial data reflects the sale of the assets of
Hy-Test as if the sale had occurred as of January 1, 1995 for pro forma
statement of operations purposes and as of December 30, 1995 for pro forma
balance sheet purposes. The pro forma data excludes the net sales and direct
costs of the Hy-Test division and the Hy-Test operating profit contribution to
central overhead costs. Management believes that the assumptions used provide
a reasonable basis on which to present the pro forma condensed financial data.
The pro forma data are presented for informational purposes only and are not
necessarily indicative of the results that would have been achieved had the
transaction actually been consummated as of such dates.
20
<PAGE> 21
<TABLE>
<CAPTION>
========================================================================================
Statement of Operations Data Nine months ended
-----------------------------------------
Pro forma
-----------------------------------------
September 30, September 28,
1995 1996
- ----------------------------------------------------------------------------------------
Amount % Amount %
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $179,662 100.0% 174,049 100.0%
Gross profit 83,989 46.7 82,325 47.3
Selling, general, and
administrative expenses 78,928 43.9 76,438 43.9
Earnings from operations 5,061 2.8 5,887 3.4
EBITDA 8,590 4.8 9,354 5.4
========================================================================================
</TABLE>
Pro forma net sales for the Nine Months 1996 were $5,613 (3.1%) lower than for
the Nine Months 1995 pro forma net sales. As noted above, the reductions were
primarily due to decreases in U.S. wholesale unit volume and same store sale
decreases at Company-operated stores.
Pro forma earnings from operations and pro forma EBITDA for the Nine Months
1996 were $826 and $764, respectively, higher than the Nine Months 1995. As
noted above, the effect of the expense reduction programs were partially offset
by the lower sales volume and increased price promotion activity.
The pro forma operations data percentages reflect the elimination of the
Hy-Test operating profit contribution to central overhead. As the result of
the Hy-Test asset sale, the Company's sales mix shifts to a higher percentage
of the total sales from the Company-operated retail stores. Accordingly, the
pro forma gross profit increases as a percent of sales as compared to
historical results with an offsetting increase in the pro forma selling,
general and administrative expenses as a percent of sales as compared to
historical results.
21
<PAGE> 22
The pro forma balance sheet data reflects the sale of Hy-Test
receivables and inventory, the sale of the Kirksville, Missouri factory, the
transfer of certain liabilities to Wolverine, the use of cash proceeds from the
sale to eliminate outstanding borrowings under the bank credit facility, and
the unapplied balance of the cash proceeds from the sale, net of transaction
costs and taxes as a result of the transaction, as if the transaction occurred
as of December 30, 1995.
<TABLE>
<CAPTION>
=======================================================================
Balance Sheet Data Pro forma
---------
December 30, September 28,
ASSETS 1995 1996
- -----------------------------------------------------------------------
<S> <C> <C>
Cash and cash equivalents $ 16,227 $ 14,052
Receivables, net 25,810 33,483
Inventories 74,826 67,797
Other current assets 14,111 15,383
- -----------------------------------------------------------------------
Total current assets 130,974 130,715
Property, plant and equipment, net 20,686 19,666
Other assets 23,898 23,526
- -----------------------------------------------------------------------
Total assets $175,558 $173,907
- -----------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities $ 27,242 $ 25,995
- -----------------------------------------------------------------------
Long-term debt 69,450 69,450
Other long-term liabilities 22,885 23,278
- -----------------------------------------------------------------------
Total liabilities 119,577 118,723
- -----------------------------------------------------------------------
Shareholders' equity 55,981 55,184
Total liabilities & shareholders' equity $175,558 $173,907
=======================================================================
</TABLE>
22
<PAGE> 23
LIQUIDITY AND CAPITAL RESOURCES
WORKING CAPITAL
As part of a continuing effort to decrease working capital requirements, the
Company initiated a program in 1994 to identify additional opportunities to
reduce working capital. To date, the Company has been successful in
significantly reducing its inventory requirements by: (i) eliminating poor
performing product styles; (ii) reducing the range of sizes and eliminating
duplication of its products; (iii) reducing inventory at Company-operated
stores; (iv) reducing inventory at the Company's Jefferson City distribution
center by redesigning current processes and systems; (v) expanding supplier
partnering programs to reduce lead times and improve quality of raw materials;
and (vi) redesigning management incentives to emphasize working capital
improvements. Under this program, inventory was reduced $27,357 during the
1995 fiscal year. During the three months ended September 28, 1996, the
Company reduced inventory by $969, following a reduction of $15,918 during the
six months ended June 29, 1996 primarily due to the sale of the assets of the
Hy-Test division.
Working capital at September 28, 1996 was $104,720, as compared to $111,922 at
December 30, 1995. The decrease is primarily due to the inventory reduction
during the Nine Months 1996, the sale of assets of the Hy-Test division and the
use of a portion of the cash proceeds to reduce to zero the $17.6 million of
outstanding borrowings under the Company's bank credit facility as of the sale
date. Cash interest payments totaled $9,296 during the Nine Months 1996, and
cash income tax payments were $1,058 during the Nine Months 1996.
FINANCING ARRANGEMENTS
Credit facility borrowings may be made from time to time to finance future
liquidity requirements, including seasonal working capital requirements. The
credit facility provides for borrowings of up to $75,000 based on a borrowing
base formula reflecting eligible accounts receivable and inventory and
includes, as part of and not in addition to the $75,000 credit limit, a
subfacility for the issuance of up to an aggregate of $60,000 in letters of
credit for issuance to Florsheim suppliers in connection with the importation
of foreign goods and for other corporate purposes and foreign currency hedging
obligations. As of September 28, 1996, the Company's borrowing base was
approximately $34,600, outstanding domestic letters of credit were $7,424, and
there were no outstanding borrowings under the credit facility. The borrowing
base was reduced by approximately $11 million due to the sale of the assets of
Hy-Test. There were $166 of outstanding borrowings under a line of credit for
a foreign subsidiary as of September 28, 1996.
On March 22, 1996, the Company received an amendment to its credit facility
agreement allowing it to purchase on the open market (and retire) Senior Notes
using up to $15,000 of proceeds from the credit facility. Such repurchases, if
executed, will enable the Company to reduce its interest expense by replacing a
portion of the Senior Notes with lower cost debt from the credit facility.
However, the amount of availability under the credit facility to meet working
capital and other borrowing needs is reduced by the amount borrowed for the
purpose of purchasing Senior Notes, and the term of the credit facility is less
than the maturity date of the Senior Notes. As of September 28, 1996, the
Company had made no purchases of Senior Notes under the amendment. Florsheim
believes that, if repurchases of Senior Notes are made, available borrowings
under the credit facility, together with cash generated from operations, will
be adequate to meet debt service, capital expenditures, and other liquidity
requirements for the foreseeable future.
SEASONALITY OF BUSINESS
Typically, the Company's net sales are somewhat seasonal with slightly greater
net sales occurring in the fourth quarter of each fiscal year.
23
<PAGE> 24
PART II OTHER INFORMATION
Item 5. Other Information
Larry J. Svoboda resigned as Vice President, Chief Financial Officer, and
Secretary in October, 1996.
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are filed as part of this
report:
10.1 Lease Agreement, dated September 6, 1996, between Teachers
Insurance and Annuity Association of America, a New York
corporation (the "Landlord") and The Florsheim Shoe Company.
11. Statement re Computation of Net Earnings Per
Common Share.
(b) A Form 8-K was not required to be filed during the quarter
ended September 28, 1996.
24
<PAGE> 25
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
THE FLORSHEIM SHOE COMPANY
(Registrant)
By Thomas E. Poggensee
----------------------
Thomas E. Poggensee
Treasurer, Controller and
Chief Accounting Officer
Date: October 25, 1996
25
<PAGE> 1
* * * * * * * * * * * * * * * * * * * *
Lease
200 North LaSalle
Chicago, Illinois
* * * * * * * * * * * * * * * * * * * *
Between
The Florsheim Shoe Company
(Tenant)
and
Teachers Insurance and Annuity
Association of America
(Landlord)
<PAGE> 2
Lease
200 North LaSalle
Chicago, Illinois
<TABLE>
<Captiom>
Page
----
<S> <C> <C> <C>
||
1. LEASE AGREEMENT................................................................... 1
2. RENT............................................................................... 2
A. Types of Rent............................................................... 2
(1) Base Rent........................................................... 2
(2) Operating Cost Share Rent........................................... 2
(3) Tax Share Rent...................................................... 2
(4) Additional Rent..................................................... 2
(5) Rent................................................................ 2
B. Payment of Operating Cost Share Rent and Tax Share Rent..................... 3
(1) Payment of Estimated Operating Cost Share Rent and Tax Share Rent... 3
(2) Correction of Operating Cost Share Rent............................. 3
(3) Correction of Tax Share Rent........................................ 3
C. Definitions................................................................. 3
(1) Taxes............................................................... 3
(2) Operating Costs..................................................... 4
D. Computation of Base Rent and Rent Adjustments............................... 5
(1) Prorations.......................................................... 5
(2) Default Interest.................................................... 5
(3) Rent Adjustments.................................................... 5
(4) Books and Records................................................... 5
(5) Miscellaneous....................................................... 6
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF PREMISES........ 6
A. Condition of Premises....................................................... 6
B. Tenant's Possession......................................................... 6
C. Maintenance................................................................. 6
D. Ownership of Improvements................................................... 6
E. Removal at Termination...................................................... 6
4. PROJECT SERVICES................................................................... 6
A. Heat and Air Conditioning................................................... 7
B. Elevators................................................................... 7
C. Electricity................................................................. 7
D. Water....................................................................... 7
E. Janitorial Service.......................................................... 7
F. Telephone Service........................................................... 7
G. Security Service............................................................ 7
H. Common Areas and Base Building Components................................... 8
I. Interruption of Services.................................................... 8
5. ALTERATIONS AND REPAIRS............................................................ 8
A. Landlord's Consent and Conditions........................................... 8
B. Electronic Systems.......................................................... 9
</TABLE>
i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
C. Damage to Systems......................................................... 9
D. No Liens.................................................................. 9
6. USES OF PREMISES................................................................. 9
7. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES..................................... 10
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE..................................... 10
A. Waiver of Claims.......................................................... 10
B. Indemnification........................................................... 10
C. Insurance Coverage........................................................ 11
D. Insurance Certificates.................................................... 11
9. FIRE AND OTHER CASUALTY.......................................................... 11
A. Termination............................................................... 11
B. Restoration............................................................... 11
10. EMINENT DOMAIN................................................................... 12
11. RIGHTS RESERVED TO LANDLORD...................................................... 12
A. Name...................................................................... 12
B. Signs..................................................................... 12
C . Window Treatments......................................................... 12
D. Service Contracts......................................................... 12
E . Keys...................................................................... 12
F. Access.................................................................... 12
G. Preparation for Reoccupancy............................................... 13
H . Heavy Articles............................................................ 13
I. Show Premises............................................................. 13
J. Restrict Access........................................................... 13
K. Intentionally Omitted..................................................... 13
L. Use of Lockbox............................................................ 13
M . Repairs and Alterations................................................... 13
N. Landlord's Agents......................................................... 13
O. Building Services......................................................... 13
P. Other Actions............................................................. 13
12. TENANT'S DEFAULT................................................................. 14
A. Rent Default.............................................................. 14
B. Assignment/Sublease or Hazardous Substances Default....................... 14
C. Other Performance Default................................................. 14
D. Credit Default............................................................ 14
13. LANDLORD REMEDIES................................................................ 14
A. Termination of Lease or Possession........................................ 14
B. Lease Termination Damages................................................. 14
C. Possession Termination Damages............................................ 14
D. Landlord's Remedies Cumulative............................................ 15
E. Waiver of Trial by Jury................................................... 15
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
F. Litigation Costs................................................................ 15
14. SURRENDER.............................................................................. 15
15. HOLDOVER............................................................................... 15
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES........................................... 15
A. Subordination................................................................... 15
B. Termination of Ground Lease or Foreclosure of Mortgage.......................... 15
C. Security Deposit................................................................ 16
D. Notice and Right to Cure........................................................ 16
E. Definitions..................................................................... 16
17. ASSIGNMENT AND SUBLEASE................................................................ 16
A. Specific Transactions........................................................... 16
B. Consent Required................................................................ 16
C. Procedure....................................................................... 16
D. Excess Payments................................................................. 17
18. CONVEYANCE BY LANDLORD................................................................. 17
19. ESTOPPEL CERTIFICATE................................................................... 17
20. SECURITY DEPOSIT....................................................................... 17
21. FORCE MAJEURE.......................................................................... 18
22. INTENTIONALLY OMITTED.................................................................. 18
23. NOTICES................................................................................ 18
A. Landlord........................................................................ 18
B. Tenant.......................................................................... 18
24. QUIET POSSESSION....................................................................... 18
25. REAL ESTATE BROKER..................................................................... 19
26. Miscellaneous.......................................................................... 19
A. Successors and Assigns........................................................... 19
B. Date Payments Are Due............................................................ 19
C. Meaning of "Landlord", "Re-Entry", "including" and "Affiliate"................... 19
D. Time of the Essence.............................................................. 19
E. No Option........................................................................ 19
F. Severability..................................................................... 19
G. Governing Law.................................................................... 19
H. Broker's Commissions............................................................. 19
I. No Oral Modification............................................................. 19
J. Landlord's and Tenant's Right to Cure............................................ 19
K. Captions......................................................................... 20
</TABLE>
-iii-
<PAGE> 5
<TABLE>
Page
----
<S> <C> <C> <C>
L. Authority........................................................................ 20
M. Landlord's Enforcement of Remedies............................................... 20
N. Entire Agreement................................................................. 20
O. Landlord's Title................................................................. 20
P. Light and Air Rights............................................................. 20
Q. Consents......................................................................... 20
R. Singular and Plural.............................................................. 20
S. No Recording by Tenant........................................................... 20
T. Exclusivity...................................................................... 20
U. No Construction Against Drafting Party........................................... 20
V. Survival......................................................................... 20
W. Rent Not Based on Income......................................................... 20
X. Building Manager and Service Providers........................................... 20
Y. Interest on Late Payments........................................................ 20
Z. Confidentiality.................................................................. 20
27. UNRELATED BUSINESS INCOME................................................................ 21
28. HAZARDOUS SUBSTANCES..................................................................... 21
29. EXCULPATION.............................................................................. 21
30. ADDITIONAL SPACE/RETAIL SPACE/CONFIRMING AMENDMENT....................................... 21
31. BASE RENT................................................................................ 22
32. RENT ABATEMENT........................................................................... 23
33. ARBITRATION.............................................................................. 23
34. EXTENSION OPTIONS........................................................................ 24
35. EXPANSION OPTION......................................................................... 26
36. RIGHT OF FIRST OFFER ON OTHER OFFICE SPACE............................................... 27
37. INTENTIONALLY OMITTED.................................................................... 28
38. RIGHT OF FIRST REFUSAL................................................................... 28
39. TERMINATION OPTIONS...................................................................... 29
40. SATELLITE DISH........................................................................... 30
41. SIGNAGE/ADVERTISING...................................................................... 30
42. LOBBY RIGHTS............................................................................. 31
</TABLE>
-iv-
<PAGE> 6
APPENDIX A - PLAN OF THE SPACES COVERED BY THIS LEASE
APPENDIX B - CLEANING SCHEDULE
APPENDIX C - RULES AND REGULATIONS
APPENDIX D - TENANT IMPROVEMENT WORK AGREEMENT
1. INITIAL IMPROVEMENTS
2. ADDITIONAL IMPROVEMENTS
3. LANDLORD'S CONTRIBUTION
4. COMMENCEMENT DATE DELAY
5. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM
6. MISCELLANEOUS
APPENDIX E - BASE BUILDING COMPONENTS AND PUNCHLIST
APPENDIX F - MORTGAGES CURRENTLY AFFECTING THE PROJECT
-v-
<PAGE> 7
LEASE
200 NORTH LASALLE
CHICAGO, ILLINOIS
THIS LEASE (the "Lease") is made as of September 6, 1996, between Teachers
Insurance and Annuity Association of America, a New York corporation (the
"Landlord") and the Tenant as named in the Schedule below. The term "Project"
means the building (the "Building") known as "200 North LaSalle Street" and the
land (the "Land") located at the northwest corner of Lake and LaSalle Streets,
Chicago, Illinois. "Premises" means that part of the Project leased to Tenant
described in the Schedule and outlined on Appendix A attached hereto.
The following schedule (the "Schedule") is an integral part of this Lease.
Terms defined in this Schedule shall have the same meaning throughout the
Lease.
SCHEDULE
1. TENANT: The Florsheim Shoe Company.
2. PREMISES: As of the date of this Lease, the Premises consist of the
following: (i) 113,535 rentable square feet of space comprising all of
floors ten through fifteen of the Building (the "Office Space"); and
(ii) 3,273 rentable square feet of space on the lower level (the "Lower
Level Space"; such Office Space and Lower Level Space are depicted on
Appendix A attached hereto). The Premises shall also include the Retail
Space (defined in Section 30 below) in accordance with the terms of such
Section 30.
3. RENTABLE SQUARE FEET OF THE PREMISES: 120,048 rentable square feet
(including the Retail Space).
4. TENANT'S PROPORTIONATE SHARE: 19.2796% (based upon the Premises,
including the Retail Space, and a total of 622,667 rentable square feet
in the Building).
5. SECURITY DEPOSIT: See Section 20. The amount of the Security
Deposit initially shall be equal to $5,433,854.57.
6. TENANT'S ADDRESS FOR NOTICES BEFORE POSSESSION DATE: 130 South Canal
Street, Chicago, Illinois 60606; Attention: Larry Svoboda.
7. TENANT'S REAL ESTATE BROKER FOR THIS LEASE: Equis.
8. INITIAL IMPROVEMENTS: See Appendix D below.
9. COMMENCEMENT DATE: January 1, 1997, unless the Landlord fails to
make the Premises (except the Retail Space) available to Tenant for
construction of the Initial Improvements on or before September 5, 1996,
in which case the Commencement Date shall be delayed one day for each
day Landlord is late in making such portion of the Premises available to
Tenant for construction of the Initial Improvements.
10. TERMINATION DATE/TERM: June 30, 2008 (assuming the Commencement Date
is January 1, 1997), eleven (11) years, six (6) months after the
Commencement Date, or if the Commencement Date is not the first day of a
month, then the day prior to eleven (11) years, six (6) months after the
first day of the following month.
11. BASE RENT: See Section 31 below.
12. GUARANTOR: None.
1. LEASE AGREEMENT. On the terms stated in this Lease, Landlord leases
the Premises to Tenant, and Tenant leases the Premises from Landlord, for the
Term beginning on the Commencement Date and ending on the Termination Date
unless extended or sooner terminated pursuant to this Lease.
<PAGE> 8
2. RENT.
A. Types of Rent. Tenant shall pay the following Rent in the form of a
check to Landlord's building manager at the office of the Building, or in such
other manner as Landlord may notify Tenant:
(1) Base Rent in monthly installments in advance on or before the
first day of the Lease and the first day of each month of the Term
thereafter in the amounts set forth in Section 31 below.
(2) Operating Cost Share Rent in an amount equal to the sum of
Tenant's Proportionate Share of Controllable Operating Costs (defined
below) and Tenant's Proportionate Share of Non-Controllable Operating
Costs (defined below), for the applicable fiscal year of the Lease, paid
monthly in advance in an estimated amount. Definitions of Controllable
Operating Costs, Non-Controllable Operating Costs and Tenant's
Proportionate Share, and the method for billing and payment of Operating
Cost Share Rent are set forth below in this Section.
The Controllable Operating Cost Share Rent (defined below) applicable
to all fiscal years falling after the first fiscal year of the Term shall
be subject to a cumulative cap based on the Cap Amount (defined below).
Thus, Controllable Operating Cost Share Rent for the second fiscal year of
the Term shall be an amount equal to the lesser of (i) Tenant's
Proportionate Share of Controllable Operating Costs during such second
fiscal year, or (ii) 105% of Tenant's Proportionate Share of Controllable
Operating Costs for the first fiscal year (such amount described in this
clause (ii) is herein referred to as the "Cap Amount"). For each fiscal
year after the second fiscal year, Controllable Operating Cost Share Rent
shall be equal to the lesser of: (i) Tenant's Proportionate Share of
Controllable Operating Costs for the applicable fiscal year; or (ii) 105%
of the Cap Amount for the immediately preceding fiscal year (which becomes
the new Cap Amount).
For purposes of this Section 2A(2), "Controllable Operating Cost
Share Rent" shall be an amount equal to Tenant's Proportionate Share of
Controllable Operating Costs. "Controllable Operating Costs" shall mean
all Operating Costs other than those related to insurance, electricity
and other utilities and collectively bargained union wages (herein,
"Non-Controllable Operating Costs"). There shall be no cap on
Non-Controllable Operating Costs.
Assume, for example, that Controllable Operating Cost Share Rent for
the first fiscal year was $100.00. In the second fiscal year,
Controllable Operating Cost Share Rent shall be an amount equal to the
lesser of (i) Tenant's Proportionate Share of Controllable Operating Costs
for the second fiscal year, or (ii) $105.00 (105% of $100.00, which amount
becomes the Cap Amount). In the third fiscal year, Controllable Operating
Cost Share Rent shall be an amount equal to the lesser of (i) Tenant's
Proportionate Share of Controllable Operating Costs for the third fiscal
year, or (ii) $110.25 (105% of $105.00, which amount becomes the new Cap
Amount).
(3) Tax Share Rent in an amount equal to the Tenant's Proportionate
Share of the Taxes for the applicable fiscal year of this Lease, paid
monthly in advance in an estimated amount. Definitions of Taxes, Tenant's
Proportionate Share and the method for billing and payment of Tax Share
Rent are set forth in Sections 2B, 2C and 2D.
(4) Additional Rent in the amount of all costs, expenses,
liabilities, and amounts which Tenant is required to pay under this Lease,
excluding Base Rent, Operating Cost Share Rent, and Tax Share Rent, but
including any interest for late payment of any item of Rent.
(5) Rent as used in this Lease means Base Rent, Operating Cost Share
Rent, Tax Share Rent and Additional Rent. Except as otherwise set forth
herein, Tenant's agreement to pay Rent is an independent covenant, with no
right of setoff, deduction or counter claim of any kind.
2
<PAGE> 9
B. Payment of Operating Cost Share Rent and Tax Share Rent.
--------------------------------------------------------
(1) Payment of Estimated Operating Cost Share Rent and Tax Share
Rent. Landlord shall estimate the Operating Costs and Taxes of the
Project each fiscal year, generally after the beginning of the year.
Landlord may revise these estimates up to 3 times in any 12-month period
of the Term whenever it obtains more accurate information, such as the
final real estate tax assessment or tax rate for the Project.
Within ten (10) days after receiving the original or revised estimate
from Landlord, Tenant shall pay Landlord one-twelfth (1/12th) of Tenant's
Proportionate Share of this estimate, multiplied by the number of months
that have elapsed in the applicable fiscal year to the date of such
payment including the current month, minus payments previously made by
Tenant for the months elapsed. On the first day of each month thereafter,
Tenant shall pay Landlord one-twelfth (1/12th) of Tenant's Proportionate
Share of this estimate, until a new estimate becomes applicable.
(2) Correction of Operating Cost Share Rent. As soon as reasonably
possible after the end of each fiscal year, Landlord shall deliver to
Tenant a report for such year (the "Operating Cost Report") setting forth
(a) the actual Operating Costs incurred, (b) the amount of Operating Cost
Share Rent due from Tenant, and (c) the amount of Operating Cost Share
Rent paid by Tenant. Within twenty (20) days after such delivery, Tenant
shall pay to Landlord the amount due minus the amount paid. If the amount
paid exceeds the amount due, Landlord shall apply the excess to Tenant's
next month's payment of Operating Cost Share Rent, if any, promptly
refunding any overage directly to Tenant.
(3) Correction of Tax Share Rent. As soon as reasonably possible
after the end of each fiscal year, Landlord shall deliver to Tenant a
report for such fiscal year (the "Tax Report") setting forth (a) the
actual Taxes, (b) the amount of Tax Share Rent due from Tenant, and (c)
the amount of Tax Share Rent paid by Tenant. Within twenty (20) days
after such delivery, Tenant shall pay to Landlord the amount due from
Tenant minus the amount paid by Tenant. If the amount paid exceeds the
amount due, Landlord shall apply any the excess as a credit against
Tenant's next month's payment of Tax Share Rent, if any, promptly
refunding any overage to Tenant.
C. Definitions.
------------
(1) Taxes. "Taxes" means any and all taxes, assessments and charges
of any kind, general or special, ordinary or extraordinary, levied by any
governmental entity, which Landlord shall pay or become obligated to pay
in connection with the ownership, leasing, renting, management, control or
operation of the Project or of the personal property, fixtures, machinery,
equipment, systems and apparatus used in connection therewith. Taxes
shall include real estate taxes, personal property taxes, sewer rents,
water rents, special or general assessments, transit taxes, ad valorem
taxes, and any tax levied on the rents hereunder or the interest of
Landlord under this Lease (the "Rent Tax"). Taxes shall also include all
legal fees and other costs and expenses paid by Landlord in seeking a
refund or reduction of any Taxes, whether or not the Landlord is
ultimately successful.
For any year, the amounts to be included in Taxes shall be the
amounts (with any interest) due and payable during such year. Any refund
or other adjustment to any Taxes by the taxing authority, shall apply
during the year in which the adjustment is made. Landlord may elect,
effective January 1 of any year, by providing ninety (90) days prior
written notice to Tenant and the other tenants in the Building, to change
the basis on which all tenants in the Building reimburse Landlord for
Taxes from the current "cash" method described above to an "accrual"
method, whereby tenants reimburse Landlord for Taxes which accrue, or are
assessed or otherwise imposed, with respect to any given year.
Taxes shall not include any net income (except Rent Tax), capital,
stock, succession, transfer, franchise, gift, estate or inheritance tax,
except to the extent that such tax shall be imposed in lieu of any portion
of Taxes, or any
3
<PAGE> 10
late charges assessed due to Landlord's failure to timely
pay Taxes unless such failure was the result of the acts or omissions of
Tenant, or its agents or employees.
(2) Operating Costs. "Operating Costs" means any expenses, costs and
disbursements of any kind other than Taxes, paid or incurred by Landlord
in connection with the management, maintenance, operation and repair of
any part of the Project and of the personal property, fixtures, machinery,
equipment, systems and apparatus used in connection therewith, including
the cost of providing those services required to be furnished by Landlord
under this Lease. Operating Costs shall not include: (a) costs of
alterations of tenant premises, and space planning fees and tenant
relocation costs; (b) costs of capital improvements and other capital
expenditures, except those primarily intended, in Landlord's commercially
reasonable business judgment, to reduce Operating Costs, and those made to
keep the Project in compliance with governmental requirements which become
effective after the date of this Lease (including changes after the date
of this Lease to the Americans With Disabilities Act ["ADA"] or any
Environmental Law [defined in Section 28 below]), amortized by Landlord in
accordance with sound accounting and management principles; (c) interest
and principal payments on mortgages or any other debt costs, or rental
payments on any ground lease of the Project ("Ground Lease"); (d) real
estate brokers' leasing commissions; (e) any cost or expenditure for which
Landlord is reimbursed (or is entitled to reimbursement), by insurance
proceeds or otherwise, except by Operating Cost Share Rent; (f) the cost
of any service furnished to any office tenant of the Project which
Landlord does not make available to Tenant; (g) salaries and other
employee costs for personnel above the grade of building manager; (h)
overhead and general administrative expenses of Landlord; (i) costs of
repair or other work necessitated by the gross negligence or willful
misconduct of Landlord or Landlord's employees, contractors or agents; (j)
court costs and legal fees incurred with regard to enforcing the
obligations of other tenants; (k) depreciation and amortization (except as
set forth in clause (b) above); (l) costs arising from the presence of
Hazardous Substances (defined below) in the Premises as of the date
possession of the Premises is delivered to Tenant; (m) costs incurred due
to the violation by Landlord, or any other tenant, of the terms and
conditions of any lease in the Project; (n) fines, penalties and interest
not brought about by the acts or omissions of Tenant, or its employees or
agents; (o) payments made under Landlord's indemnities to Tenant hereunder
or under any indemnity by Landlord to any other tenant in the Project; (p)
amounts paid to Landlord or to subsidiaries or affiliates of Landlord for
goods supplied to the Project or services rendered to the Project to the
extent the same exceeds the costs of such goods and services if rendered
by unaffiliated third parties on a competitive basis; (q) political or
charitable contributions; and (r) any cost or expense incurred by Landlord
in order to bring the Project into compliance with the ADA or any
Environmental Law as in effect on the date of this Lease.
If the Project is not fully leased during any portion of any fiscal
year, Landlord may adjust (an "Equitable Adjustment") Operating Costs to
equal what would have been incurred by Landlord had the Project been fully
leased. For example, assume (i) the Building has ten floors; (ii) the
Tenant occupies one floor and Tenant's Proportionate Share is ten percent
(10%); (iii) the other nine floors are vacant; (iv) the cost of providing
a particular service for Tenant's floor is $1,000. If Tenant paid
Tenant's Proportionate Share of that cost, Tenant would pay $100.
Instead, Landlord shall estimate the cost of such service for the Building
if it were one hundred percent (100%) leased. Landlord would take into
account any economies of scale; for example, the cost for the entire
Building might be $9,000. The Landlord's estimate ($9,000) minus the
actual cost incurred by the Landlord ($1000) equals the Equitable
Adjustment ($8000). The Equitable Adjustment is added to the actual cost
and Tenant pays Tenant's Proportionate Share of the total; in this
example, Tenant would pay $9,000 times 10% or $900. This Equitable
Adjustment shall apply only to Operating Costs which are variable and
therefore increase as leasing of the Project increases. Landlord may
incorporate the Equitable Adjustment in its estimates of Operating Costs.
If Landlord does not furnish any particular service whose cost would
have constituted an Operating Cost to a tenant who has undertaken to
perform such service itself, Operating Costs shall be increased by the
amount which Landlord would have incurred if it had furnished the service
to such tenant.
For any year, the amounts to be included in Operating Costs shall be
the amounts due and payable during such year. Any adjustment to any
Operating Costs shall apply during the year in which the adjustment is
made.
4
<PAGE> 11
Landlord may elect, effective January 1 of any year, by providing
ninety (90) days prior written notice to Tenant and the other tenants in the
Building, to change the basis on which all tenants in the Building reimburse
Landlord for Operating Costs from the current "cash" method to an "accrual"
method, whereby tenants reimburse Landlord for Operating Costs which accrue
with respect to any given year.
"Lease Year" means each consecutive twelve-month period beginning with
the Commencement Date, except that if the Commencement Date is not the first
day of a calendar month, then the first Lease Year shall be the period from the
Commencement Date through the final day of the twelve months after the first
day of the following month, and each subsequent Lease Year shall be the twelve
months following the prior Lease Year.
Fiscal Year. "Fiscal Year" means the calendar year, except that the
first fiscal year and the last fiscal year of the Term may be a partial
calendar year.
D. Computation of Base Rent and Rent Adjustments.
---------------------------------------------
(1) Prorations. If this Lease begins on a day other
than the first day of a month, the Base Rent, Operating Cost Share Rent
and Tax Share Rent shall be prorated for such partial month. If this Lease
begins on a day other than the first day, or ends on a day other than the last
day, of the fiscal year, Operating Cost Share Rent and Tax Share Rent shall be
prorated for the applicable fiscal year.
(2) Default Interest. Any sum due from Tenant to Landlord not paid
when due shall bear interest from the date due until paid at the annual
rate equal to three percent (3%) plus the "Corporate Base Rate" at the time of
such nonpayment. "Corporate Base Rate" means the rate of interest most recently
announced by the First National Bank of Chicago, or its successor (the "First")
as its corporate base rate. If the First ceases to use the term corporate base
rate, then the Corporate Base Rate shall be the rate used by the First as a base
rate of interest for commercial loans, however this rate is designated by the
First. A certificate by an officer of the First stating the corporate base rate
(or such designated rate) in effect shall be conclusive evidence thereof.
(3) Rent Adjustments. If the number of rentable square feet in
either the Premises or the Building shall be changed, Tenant's
Proportionate Share shall be appropriately recalculated as of the date of the
change, provided that, in no event shall Tenant's Proportionate Share be
increased as a result of a change in the amount of the office space in the
Building. If any Operating Cost paid in one fiscal year relates to more than
one fiscal year, Landlord shall proportionately allocate such Operating Cost
among the related fiscal years.
(4) Books and Records. Landlord shall maintain books and records
reflecting the Operating Costs and Taxes in accordance with sound
accounting and management practices. Tenant, and its agents and
representatives may inspect and audit Landlord's records at Landlord's office
upon one day's prior notice during normal business hours during the one hundred
twenty (120) days following delivery of either the Operating Cost Report or the
Tax Report. Tenant and any agent or representative of Tenant shall keep the
results of such inspections or audit entirely confidential, and specifically
not make such results available to any other tenant in the Building. Any agent
or representative of Tenant shall agree to such confidentiality for the benefit
of Landlord in its contract with Tenant. Unless Tenant sends to Landlord any
written exception to either such report within said one hundred twenty (120)
day period, such report shall be deemed final and accepted by Tenant. Tenant
shall pay the amount shown on both reports in the manner prescribed in this
Lease, whether or not Tenant takes any such written exception, without any
prejudice to such exception. If Tenant makes a timely exception, an
independent certified public accountant, who is an employee of any of KPMG Peat
Marwick, Arthur Andersen & Co., Price Waterhouse, Ernst & Young, Coopers &
Lybrand or Deloitte & Touche, and is reasonably acceptable to Landlord and
Tenant, shall issue a final and conclusive resolution of Tenant's exception.
If the independent certified public accountant determines that Tenant has
overpaid, Landlord shall apply the amount of such overpayment as a credit
against the next installments of Tax Share Rent and Operating Cost Share Rent
coming due, or if this Lease has terminated, subject to Paragraph (5) below,
Landlord shall refund such overpayment to Tenant. If the accountant determines
that Tenant has underpaid,
5
<PAGE> 12
Tenant shall pay Landlord the amount of such underpayment upon demand.
Tenant shall pay the cost of such certification unless Landlord's original
determination of annual Operating Costs or Taxes was in error by more than
five percent (5%).
(5) Miscellaneous. So long as Tenant is in default of any obligation
under this Lease, Tenant shall not be entitled to any refund of any amount
from Landlord. If this Lease is terminated for any reason prior to the
annual determination of Operating Cost Share Rent or Tax Share Rent,
either party shall pay the full amount due to the other within fifteen
(15) days after Landlord's notice to Tenant of the amount when it is
determined. Landlord may commingle any payments made with respect to
Operating Cost Share Rent or Tax Share Rent, without payment of interest.
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF
PREMISES.
A. Condition of Premises. Except for those "Punchlist" items identified
in Paragraph B of Appendix E attached hereto which are Landlord's
responsibility, Landlord is leasing the Premises, including the Base Building
Components (which are also described on Appendix E) of the Premises, to Tenant
"as is," without any representations or warranties, including any express or
implied warranties of merchantability, fitness or habitability, and without any
obligation to alter, remodel, improve, repair, decorate or clean any part of
the Premises.
B. Tenant's Possession. Tenant's taking possession of any portion of the
Premises shall be conclusive evidence that such portion was in good order,
repair and condition. If Landlord authorizes Tenant to take possession of any
part of the Premises prior to the Commencement Date for purposes of doing
business, all terms of this Lease shall apply to such pre-Term possession,
including Base Rent at the rate set forth in Section 31, prorated for any
partial month.
C. Maintenance. Throughout the Term, Tenant shall maintain the Premises
in their condition as of the Commencement Date, loss or damage caused by the
elements, ordinary wear, and fire and other casualty excepted, and at the
termination of this Lease, or Tenant's right to possession, Tenant shall return
the Premises to Landlord in broom-clean condition. To the extent Tenant fails
to perform either obligation, Landlord may, but need not, restore the Premises
to such condition and Tenant shall pay the cost thereof.
D. Ownership of Improvements. All Work as defined in Section 5 below,
partitions, hardware, and all fixtures except trade fixtures, constructed in
the Premises by either Landlord or Tenant, shall become Landlord's property
upon installation without compensation to Tenant, unless Landlord requires
Tenant to remove such items pursuant to Paragraph E below.
E. Removal at Termination. Tenant shall remove, in a good and workmanlike
manner, (i) its trade fixtures, furniture, moveable equipment and other
personal property from the Premises, (ii) items of Work which Landlord, in its
consent to the same, specified for removal at the termination of this Lease or
Tenant's right to possession, provided that, by giving Tenant written notice at
least 30 days prior to the termination of this Lease or Tenant's right to
possession, Landlord may instruct Tenant not to remove certain items of Work
which Tenant would have otherwise removed in accordance with this clause (ii),
and (iii) items of Non-Consent Work which if not removed, will substantially
increase Landlord's demolition costs; upon the termination of this Lease or
Tenant's right of possession. Tenant shall return the Premises to its condition
prior to the installation of any items which are so removed. If Tenant does not
so remove, then Tenant shall be conclusively presumed to have, at Landlord's
election (i) conveyed such property to Landlord without compensation, or (ii)
abandoned such property, and Landlord may dispose of any part thereof in any
manner without liability to Tenant or any other person. Landlord shall have no
duty to be a bailee of any such personal property. If Landlord elects
abandonment, Tenant shall pay to Landlord, upon demand, any expenses incurred
for disposition and demolition.
4. PROJECT SERVICES.
Landlord shall furnish services as follows:
6
<PAGE> 13
A. Heat and Air Conditioning. During the normal business
hours of 8:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00
a.m. to 1:00 p.m. on Saturday, Landlord shall furnish (i) air
conditioning such that the average temperature condition of the
Premises is 74 degrees F + 2 degrees F dry bulb with 50% + 5% relative
humidity when the outdoor conditions are not above 95 degrees F dry
bulb, and (ii) heat such that the average temperature condition of the
Premises is 67 degrees F + 2 degrees F dry bulb when the outdoor
conditions are not below 5 degrees F dry bulb. Such temperature range
is subject to Tenant's installment of equipment which adversely affects
the temperature maintained by the heating and air conditioning system.
If Tenant installs any such equipment, Landlord may install
supplementary heating and air conditioning units in the Premises, and
Tenant shall pay to Landlord upon demand as Additional Rent the cost of
installation, operation and maintenance thereof.
Landlord shall furnish heating and air conditioning after
business hours if Tenant provides Landlord at least twenty-four (24)
hours' notice for weekdays, and by 12:00 p.m. on Fridays for weekends,
and pays Landlord all then current charges for such additional heating
or air conditioning (which rates are currently $75.00 per hour for all
of the Premises), provided Landlord shall use commercially reasonable
efforts to furnish such after-hours heating or air conditioning on
shorter notice from Tenant.
B. Elevators. Landlord shall provide passenger elevator
service during normal business hours to Tenant in common with
Landlord and all other tenants. Landlord shall provide limited
passenger service at other times, except in case of an emergency.
Landlord shall provide freight elevator service at Tenant's request,
and at the hours specified in Addendum C below, subject to scheduling
by the Landlord, and, for after-business hour use, payment for the
service by Tenant. Tenant shall, however, not be obligated to pay for
freight elevator service during its move-in period.
C. Electricity. Landlord shall pay for the electricity
required for the operation of the heating and air conditioning
systems in the Premises during the hours specified in Paragraph A
above, and shall include such payment in Operating Costs. All other
electricity used in the Premises shall be supplied by the electricity
company through a separate meter and paid for by Tenant. Tenant shall
pay for the installation of any sub-meter required on any floor of its
Premises. Except as provided in Paragraph I below, any decrease or
discontinuance of electric service shall not affect the parties'
rights and obligations under this Lease. Assuming all other tenants at
the Project are using electricity in the aggregate at a normal and
customary rate, Tenant shall not use electricity at a rate which
causes the use by all tenants to exceed the capacity of the Building
or the risers or wiring to the Premises. Landlord shall at Tenant's
expense (which expense shall be consistent with that charged by other
Comparable Buildings [defined below]) maintain the light fixtures and
install lamps, bulbs, ballasts and starters in the Premises.
Tenant shall pay for all electricity required for janitorial
service, for alterations and repairs to the Premises, and for
the operation of any supplementary air conditioning or ventilating
system required for its equipment.
D. Water. Landlord shall furnish (i) tap water for
dishwasher and computer room purposes, (ii) cold water for
drinking and toilet purposes, and (iii) cold and hot water for lavatory
purposes. Tenant shall not permit water to be wasted.
E. Janitorial Service. Landlord shall furnish janitorial
service as set forth in Appendix B. Tenant may obtain
supplementary janitorial service only at its sole cost and
responsibility, with employees or contractors satisfactory to Landlord,
and subject to Landlord's prior written consent.
F. Telephone Service. Tenant may arrange for telephone
service in the Premises directly with the telephone company.
Tenant shall pay the cost of all charges for installation and service.
G. Security Service. Landlord shall provide a
reasonable security service for the Building consistent with
that of Comparable Buildings, with no warranty as to the effectiveness
of such service.
7
<PAGE> 14
H. Common Areas and Base Building Components. Landlord
shall maintain and repair the common areas of the Project and
the Base Building Components in a manner consistent with Comparable
Buildings.
I. Interruption of Services. Except as provided below in
this Paragraph I, interruption of services caused by repairs,
replacements, or alterations to the service system, or by any other
cause beyond the reasonable control of Landlord, shall not be deemed an
eviction or disturbance of Tenant's possession of any part of the
Premises, or render Landlord liable to Tenant for damages, or otherwise
affect the rights and obligations of Landlord and Tenant under this
Lease.
The rent otherwise payable under this Lease shall abate in
the manner described in the last sentence of this paragraph if
all of the following conditions are met: (i) if Landlord ceases to
furnish any service in the Building as a result of a condition which
affects only the Building (i.e., which does not affect office buildings
in general in the vicinity of the Building); and (ii) if Tenant
notifies Landlord in writing within one (1) business day after such
cessation; and (iii) if such cessation is not caused by Force Majeure
(as defined in Section 21 below); and (iv) if such cessation has not
arisen as a result of an act or omission of Tenant; and (v) as a result
of such cessation, the Premises (or a material portion thereof) is
rendered untenantable (meaning that Tenant is unable to use such space
in the normal course of its business) and Tenant in fact so ceases to
use such space in the manner used prior to such cessation. As Tenant's
sole and exclusive remedy for such cessation, on the sixth day after
all of the foregoing conditions have been met, the rent payable
hereunder shall be equitably abated based upon the percentage of the
space in the Premises so rendered untenantable and not being so used by
Tenant, and such abatement shall continue until the date the Premises
become tenantable again.
5. ALTERATIONS AND REPAIRS.
A. Landlord's Consent and Conditions. Tenant shall not make any
improvements or alterations to the Premises which (i) adversely impact,
in Landlord's sole discretion, the base structural components or the heating,
air conditioning, ventilation, electrical, plumbing or mechanical systems
(collectively, the "Systems") of the Building, or (ii) impact any other tenant's
premises (collectively, the "Systems/Structure Work"), without submitting plans
and specifications therefor to Landlord, and obtaining Landlord's prior written
consent thereto (which consent may be withheld in Landlord's sole discretion).
Tenant shall not make any improvements or alterations in or additions, changes
or installations to the Premises which are not deemed Systems/Structure Work
pursuant to this Paragraph 5A, without submitting plans and specifications
therefor to Landlord, and obtaining Landlord's prior written consent thereto, if
(a) the cost thereof is in excess of $10,000.00, or (b) such improvements,
alterations, additions, changes or installations are visible from outside the
Premises, or (c) any improvements, alterations, additions, changes or
installations which impact the Systems but are not deemed Systems/Structure Work
by Landlord in its sole discretion (collectively, the "Consent Work"). Tenant
shall be allowed to make any improvements or alterations in or additions,
changes or installations to the Premises which are not deemed Systems/Structure
Work or Consent Work pursuant to this Section 5A without Landlord's consent
(collectively, the "Non-Consent Work"). For purposes of this Lease,
Systems/Structure Work, Consent Work, Non-Consent Work and Initial Improvements
are sometimes collectively referred to herein as the "Work". Landlord hereby
agrees to inform Tenant of its approval or disapproval of any such
Systems/Structure Work or Consent Work within fifteen (15) days after receipt of
a complete set of plans and specifications therefor. If Landlord fails to
respond in such 15-day period, such Work shall be deemed approved. Tenant shall
pay Landlord's standard charge for review of the plans and all other items
submitted by Tenant (which is currently $75.00 per hour). With respect to
Systems/Structure Work and Consent Work, Landlord may impose any conditions it
chooses on such consent. Except as provided in Addendum D below, Tenant shall
pay for the cost of all Work. The Work shall be performed by contractors
acceptable to Landlord. The following requirements shall apply to all Work:
(1) Prior to commencement of either Systems/Structure Work
or Consent Work, Tenant shall furnish to Landlord building
permits and certificates of insurance satisfactory to Landlord.
(2) Tenant shall perform all Work so as to maintain peace
and harmony among other contractors serving the Project and
shall avoid interference with other work to be performed or services to
be rendered in the Project.
8
<PAGE> 15
(3) The Work shall be performed in a good and workmanlike
manner, meeting the standard for construction and quality of
materials in the Building, and shall comply with all insurance
requirements and all applicable laws, ordinances and regulations.
(4) Tenant shall permit Landlord to supervise all Work.
Landlord may charge a supervisory fee not to exceed five
percent (5%) of labor, material, and all other costs of the Work, if
Tenant's employees or contractors perform the Work.
(5) Prior to commencement of any Work, Tenant shall furnish
Landlord with plans and specifications for the same.
(6) Upon completion, Tenant shall furnish Landlord with
contractor's affidavits and full and final statutory waivers of
liens, as-built plans and specifications, and receipted bills covering
all labor and materials.
B. Electronic Systems. If Tenant notifies Landlord that Tenant requires
additional electrical or cable capacity for telegraph, telephone, burglar
alarm, computer, or signal service, Landlord shall direct how the installation
shall be done, but subject to the reasonable review of Tenant as to the
installation. Tenant shall make no installation of any kind except in
accordance with Landlord's direction. At Landlord's election, Landlord may
make final connections to the electrical Systems itself. Tenant shall pay for
the entire cost of both the installation and the service.
C. Damage to Systems. If any part of the mechanical, electrical or
other systems in the Premises shall be damaged, Tenant shall promptly,
upon obtaining knowledge thereof, notify Landlord, and Landlord shall repair
such damage, and if there is an interruption of services as a result of such
repair, the terms of Section 4I above shall apply. Landlord may also at any
reasonable time make any repairs or alterations which Landlord deems necessary
for the safety or protection of the Project, or which Landlord is required to
make by any court or other governmental authority. Tenant shall at its expense
make all other repairs necessary to keep the Premises, and Tenant's fixtures
and personal property, in good order, condition and repair, ordinary wear and
damage caused by fire and other casualty excepted; to the extent Tenant fails
to do so, and Landlord has given Tenant notice of such failure in the event of
a non-emergency and Tenant has failed to cure such failure within 10 days after
receipt of such notice, or 30 days after receipt of such notice if (i) such
failure is not susceptible to being cured within such 10-day period, (ii)
Tenant is diligently pursuing the cure of such failure, and (iii) such failure
does not adversely impact any other tenants at the Project, Landlord may make
such repairs itself, except that in the event of an emergency, Landlord may
immediately make such repairs without providing any notice or cure period to
Tenant. The cost of any repairs made by Landlord on account of Tenant's
default, or on account of the mis-use or neglect by Tenant or its invitees,
contractors or agents anywhere in the Project, shall become Additional Rent
payable on demand by Tenant.
D. No Liens. Tenant has no authority to cause or permit any lien or
encumbrance of any kind to affect Landlord's interest in the Project; any such
lien or encumbrance shall attach to Tenant's interest only. If any mechanic's
lien shall be filed or claim of lien made for work or materials furnished to
Tenant (other than due to a failure or default by Landlord), then Tenant shall
at its expense within thirty (30) days thereafter either discharge or contest
the lien or claim. If Tenant contests the lien or claim, then Tenant shall (i)
within such thirty (30) day period, provide Landlord adequate security for the
lien or claim, (ii) contest the lien or claim in good faith by appropriate
proceedings that operate to stay its enforcement, and (iii) pay promptly any
final adverse judgment entered in any such proceeding. If Tenant does not
comply with these requirements, Landlord may discharge the lien or claim, and
the amount paid, as well as attorneys' fees and other expenses incurred by
Landlord, shall become Additional Rent payable on demand by Tenant.
6. USES OF PREMISES. Tenant shall use: (i) the Office Space only for
general office use, (ii) the Retail Space only for retail use, and (iii) the
Lower Level Space only for general office use and the Sample Shoe Assembly.
The Sample Shoe Assembly in its current operation is described as follows: (a)
Tenant uses a laser cutter to cut paper or plastic patterns to create prototype
new shoe styles, and (b) Tenant cuts shoe parts out of leather or cloth using a
die or knife, applying latex glue to the leather or cloth so it stays in place
while it is sewn together to form a shoe. As conditions of Tenant installing
and operating the Sample Shoe Assembly, Tenant shall provide evidence
satisfactory to the Landlord that the Sample
9
<PAGE> 16
Shoe Assembly will comply with the Chicago Zoning Code and Building
Ordinance and any other applicable governmental requirements, and that the
Sample Shoe Assembly shall not increase the costs of Landlord's insurance on
the Project. Tenant shall comply with Section 5 hereof in installing the
Sample Shoe Assembly. Tenant shall use no Hazardous Substances in the
operation of the Sample Shoe Assembly. Tenant shall be fully responsible for
any injury to person or property arising out of the installation, presence or
operation of the Sample Shoe Assembly. Tenant shall not allow any use of the
Premises which would cause the value or utility of any part of the Premises to
diminish or would interfere with any other Tenant or with the operation of the
Project by Landlord. Tenant shall not permit any nuisance or waste upon the
Premises, or allow any offensive noise or odor in or around the Premises.
Tenant may place vending or dispensing machines in the Premises with Landlord's
prior approval.
7. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES. Tenant shall comply
with all governmental laws or regulations applying to its use of the
Premises. Tenant shall also comply with all reasonable rules established for
the Project from time to time by Landlord. The present rules are contained in
Appendix C. Failure by another tenant to comply with the rules or failure by
Landlord to enforce them shall not relieve Tenant of its obligation to comply
with the rules or make Landlord responsible to Tenant in any way, provided that
Landlord shall not more stringently enforce any rule against Tenant than
against any other tenant at the Project.
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
A. Waiver of Claims.
(1) To the extent permitted by law, Tenant waives any claims it
may have against the Landlord or its officers, directors, agents,
contractors or employees for business interruption, damage to property,
or any other loss sustained by Tenant as the result of any accident or
occurrence in the Project or of any part of the Building becoming in
disrepair.
(2) To the extent permitted by law, Landlord waives any claims
it may have against the Tenant or its officers, directors, agents,
contractors or employees for rent loss, damage to property, or any other
loss sustained by Landlord as the result of any accident or occurrence
in the Premises or Project or of any part of the Premises becoming in
disrepair.
(3) The insurance policies obtained by Landlord and Tenant shall
include a waiver of subrogation by the insurers and all rights based
upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and
contractors, in connection with any loss or damage thereby insured
against.
B. Indemnification.
(1) Tenant shall indemnify, defend and hold harmless Landlord
and its directors, officers, employees, agents and contractors against
any claims by any third party for injury to any person or damage to or
loss of any property occurring in the Project and arising from the use
of the Premises or from any act or omission of Tenant or any of
Tenant's employees, agents, invitees or contractors.
(2) Landlord shall indemnify, defend and hold harmless Tenant and
its directors, officers, employees, agents and contractors against any
claims by any third party for injury to any person or damage to or loss
of any property occurring in the Project and arising from the use of the
Project or from any act or omission of Landlord or any of Landlord's
employees, agents, invitees or contractors.
10
<PAGE> 17
C. Insurance Coverage.
(1) Tenant shall maintain insurance customary for an office tenant,
with such terms, coverages and insurers, as Landlord shall reasonably
require from time to time. Initially, such insurance shall include:
(A) Comprehensive General Liability Insurance, with (i) Contractual
Liability including the indemnification provisions contained in this
Lease, (ii) a severability of interest endorsement, (iii) limits of not
less than One Million Dollars ($1,000,000) combined single limit per
occurrence for bodily injury, sickness or death, and property damage, and
umbrella coverage of not less than Five Million Dollars ($5,000,000), and
(iv) Landlord and Landlord's building manager named as additional
insureds.
(B) Insurance against (i) "All Risks" of physical loss covering the
replacement cost of all of Tenant's fixtures and personal property, and
(ii) loss of use of the Premises.
Tenant's insurance shall be primary and not contributory.
(2) Landlord shall carry insurance policies in amounts and on terms
and conditions which are normally carried by reasonably prudent owners of
properties similar to the Project.
D. Insurance Certificates. Tenant shall deliver to Landlord certificates
evidencing all required insurance no later than five (5) days prior to the
Commencement Date and each renewal date. Each certificate will provide for the
thirty (30) days prior written notice of cancellation to Landlord and Tenant.
9. FIRE AND OTHER CASUALTY.
A. Termination. If a fire or other casualty causes substantial damage to
the Building or the Premises, Landlord shall engage a registered architect to
certify within one (1) month of the casualty to both Landlord and Tenant, the
amount of time needed to restore the Building and the Premises to
tenantability, using standard working methods. If the time needed exceeds (i)
eighteen (18) months from the date of the casualty, or (ii) two (2) months
therefrom if the restoration would begin during the last eighteen (18) months
of the Lease, then in the case of (a) the Premises, or access thereto or
furnishing of essential services thereto, if the damages to the Premises or
access thereto or furnishing of essential services thereto are so substantial
that the Premises cannot be used by the Tenant for the operation of its
business, either Landlord or Tenant may terminate this Lease, and (b) the
Building, Landlord (provided Landlord terminates all other leases in the
Project) may terminate this Lease, by notice to the other party within five (5)
business days after the notifying party's receipt of the architect's
certificate. The termination shall be effective thirty (30) days from the date
of the notice and Rent shall be paid by Tenant to that date, with an abatement
for any portion of the space which has been untenantable after the casualty.
Notwithstanding the foregoing, if Landlord elects to terminate this Lease
pursuant to clause (ii) above by providing Tenant with notice prior to the last
twelve months of the Term, Tenant may override Landlord's election to terminate
by electing to extend the Term in accordance with Section 34 below, except that
Tenant shall provide written notice to Landlord of such election to extend
along with its good faith estimate of the Market Renewal Rate within two (2)
business days after receipt of Landlord's termination notice and within two (2)
business days after receipt of such notice from Tenant, Landlord shall provide
Tenant with notice of its good faith estimate of the Market Renewal Rate.
Section 33 of this Lease shall then be applicable but be modified as follows:
(a) the "five (5) day" period referred to in the introduction of Section 33
shall be amended to be "one (1) business day," and (b) the "fourteen (14) day"
period referred to in Section 33A shall be amended to be "two (2) business
days". If Tenant so overrides Landlord's election to terminate, the terms of
Paragraph B below shall apply.
B. Restoration. If a casualty causes damage to the Building or the
Premises but this Lease is not terminated for any reason, then subject to the
rights of any mortgagees or ground lessors, Landlord shall obtain the
applicable insurance proceeds and diligently restore the Building and the
Premises subject to current governmental requirements, and, if Landlord grants
a mortgage encumbering the Project or enters into a ground lease with respect
to the Land, Landlord will use commercially reasonable efforts to negotiate
with the mortgagee or ground lessor so that to the extent feasible Landlord may
11
<PAGE> 18
restore in the event of a casualty. Tenant shall replace its damaged personal
property and fixtures. Rent shall be abated on a per diem basis during the
restoration for any portion of the Premises which is untenantable.
10. EMINENT DOMAIN. If a part of the Project is taken by eminent domain
or deed in lieu thereof which is so substantial that the Premises cannot
reasonably be used by Tenant for the operation of its business, then either
party may terminate this Lease effective as of the date of the taking. If any
substantial portion of the Project is taken without affecting the Premises,
then Landlord may terminate this Lease as of the date of such taking. Rent
shall abate from the date of the taking in proportion to any part of the
Premises taken. The entire award for a taking of any kind shall be paid
Landlord, and Tenant shall have no right to share in the award. All
obligations accrued to the date of the taking shall be performed by each party.
11. RIGHTS RESERVED TO LANDLORD.
Landlord may exercise at any time and of the following rights respecting
the operation of the Project without liability to the Tenant of any kind:
A. Name. Except as provided in Section 40 below, to change the name or
street address of the Building or the suite numbers of the Premises.
B. Signs. Except as provided in Section 40 below, to install and maintain
any signs on the exterior and in the interior of the Building, and to approve
at its discretion prior to installation any of the Tenant's signs in the
Premises visible from the common areas or the exterior of the Building.
C. Window Treatments. To approve, at its discretion, prior to
installation any shades, blinds, ventilators or window treatments of any kind,
as well as any lighting within the Premises that may be visible from the
exterior of the Building.
D. Service Contracts. To enter into service contracts with all providers
furnishing ice and drinking water, towels, toilet supplies, shoe shines, sign
painting, beverage or food services, or other services to the Premises,
provided that the rates charged are reasonably competitive for office buildings
in the Chicago area.
E. Keys. To retain and use at any time passkeys to enter the Premises or
any door within the Premises. Tenant shall not alter or add any lock or bolt.
Notwithstanding anything to the contrary contained in this Section 11E, Tenant
may, if Tenant complies with all of the requirements set forth in this Section,
provide its own locks to an area or areas within the Premises (the "Secured
Areas"). Tenant need not furnish Landlord with keys to the Secured Areas but
upon the termination of this Lease, Tenant shall surrender all such keys to
Landlord. If Landlord determines in its sole discretion that an emergency (or
other situation) in the Building or the Premises (including but not limited to,
a suspected fire or flood) requires Landlord to gain access to the Premises,
Tenant hereby authorizes Landlord to forcibly enter any or all of the Secured
Areas. In such event, Landlord shall have no liability whatsoever to Tenant,
and Tenant shall pay all reasonable expenses incurred by Landlord in repairing
or reconstructing any entrance, corridor or other door or other portions of the
Premises or any of the Secured Areas damaged as a result of the forcible entry
by Landlord. Landlord shall make a reasonable effort to contact Tenant or its
representatives to secure access to any Secured Area prior to a forcible entry,
but under no circumstances is Landlord obligated to contact Tenant or its
representatives. Landlord shall have no obligation to provide either
janitorial service or cleaning in the Secured Areas.
On or before ten (10) days prior to the creation of any Secured Area,
Tenant shall give notice to Landlord of the exact location of such Secured Area
and the name of the representative of Tenant to be contacted and the manner of
contact so as to avoid any such forcible entry.
F. Access. To have access to inspect the Premises upon providing
reasonable notice to Tenant, except in the event of an emergency, and to
perform its obligations, or make repairs, alterations, additions or
improvements, as permitted
12
<PAGE> 19
by this Lease. Landlord shall (i) repair all damages caused to the
Premises, and (ii) use commercially reasonable efforts to minimize any
interference with Tenant's business, caused by Landlord's exercise of its rights
contained in this Section 11F. Any overtime work necessary to so minimize
interference shall not be a direct expense of Tenant but may be included by
Landlord as an Operating Cost.
G. Preparation for Reoccupancy. To decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy at any time after Tenant
abandons the Premises and ceases paying any Rent due under this Lease, without
relieving Tenant of any obligation to pay Rent.
H. Heavy Articles. To approve the weight, size, placement and time and
manner of movement within the Building of any safe or other heavy article of
Tenant's property. Tenant shall move its property entirely at its own risk.
I. Show Premises. To show the Premises to prospective purchasers or
brokers at any reasonable time, and to prospective tenants during the final 11
months of the Term, provided that Landlord gives reasonable prior notice to
Tenant, allows a representative of Tenant to be present at the showing and does
not materially interfere with Tenant's use of the Premises.
J. Restrict Access. To restrict access to the Project during such hours
as Landlord shall determine, so long as Landlord shall admit Tenant, and its
employees and invitees, at all times, subject to appropriate regulation by
Landlord.
K. Intentionally Omitted.
L. Use of Lockbox. To designate a lockbox collection agent for
collections of amounts due Landlord. In that case, the date of payment of Rent
or other sums shall be the date of the agent's receipt of such payment or the
date of actual collection if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment. However, if Tenant is in
default under this Lease, Landlord may reject any payment for all purposes as
of the date of receipt or actual collection by mailing to Tenant within 21 days
after such receipt or collection a check equal to the amount sent by Tenant.
M. Repairs and Alterations. Upon prior reasonable notice to Tenant
(except in the event of any emergency), to make repairs or alterations to the
Project and in doing so transport any required material through the Premises,
to close entrances, doors, corridors, elevators and other facilities in the
Project, to open any ceiling in the Premises, or to temporarily suspend
services or use of common areas in the Building. Landlord may perform any such
repairs or alterations during ordinary business hours, except that Tenant may
reasonably require any such repairs or alterations in the Premises to be done
after business hours and if overtime work is necessary, the cost of such
overtime may be included by Landlord as an Operating Cost but shall not be
directly payable by Tenant. Landlord may do or permit any work on any nearby
building, land, street, alley or way. In exercising its rights under this
Section 11M, Landlord shall (i) allow Tenant, and its agents and employees,
reasonable access to the Premises at all times, (ii) use commercially
reasonable efforts to minimize any interference with Tenant's business, and
(iii) repair all damage caused to the Premises by Landlord, or its agents or
employees.
N. Landlord's Agents. If Tenant is in default under this Lease,
possession of Tenant's funds or negotiation of Tenant's negotiable instrument
by any of Landlord's agents shall not waive any breach by Tenant or any
remedies of Landlord under this Lease.
O. Building Services. Except for pipes, conduits, wires and ducts which
exclusively serve the Premises, to install, use and maintain through the
ceiling of the Premises and beneath the floor of the Premises, pipes, conduits,
wires and ducts serving the Building, provided that such installation, use and
maintenance does not unreasonably interfere with Tenant's use of the Premises.
P. Other Actions. To take any other action which Landlord deems
reasonable in connection with the operation, maintenance or preservation of the
Building.
13
<PAGE> 20
12. TENANT'S DEFAULT.
Any of the following shall constitute a default by Tenant:
A. Rent Default. Tenant fails to pay any Rent when due, and this failure
continues for five days after written notice from Landlord;
B. Assignment/Sublease or Hazardous Substances Default. Tenant defaults
in its obligations under Section 17 (Assignment and Sublease) or Section 28
(Hazardous Substances);
C. Other Performance Default. Tenant fails to perform any other
obligation to Landlord under this Lease, and this failure continues for thirty
days after written notice from Landlord, except that if Tenant begins to cure
its failure within the thirty-day period but cannot reasonably complete its
cure within such period, then the thirty-day period shall be extended to
one-hundred twenty days, or such lesser period as is reasonably necessary to
complete the cure;
D. Credit Default. One of the following credit defaults occurs:
(1) Tenant commences any proceeding under any law relating to
bankruptcy, insolvency, reorganization or relief of debts, or seeks
appointment of a receiver, trustee, custodian or other similar official
for the Tenant or for any substantial part of its property, or any such
proceeding is commenced against Tenant and either remains undismissed for
a period of ninety days or results in the entry of an order for relief
against Tenant which is not fully stayed within thirty days after entry;
(2) Tenant becomes insolvent or bankrupt, does not generally pay its
debts as they become due, or admits in writing its inability to pay its
debts, or makes a general assignment for the benefit of creditors;
(3) Any third party obtains a levy or attachment under process of law
against Tenant's leasehold interest.
13. LANDLORD REMEDIES.
A. Termination of Lease or Possession. If Tenant defaults, Landlord may
elect by notice to Tenant either to terminate this Lease or to terminate
Tenant's possession of the Premises without terminating this Lease. In either
case, Tenant shall immediately vacate the Premises and deliver possession to
Landlord, and Landlord may repossess the Premises and may remove any of
Tenant's signs and any of its other property, without relinquishing its right
to receive Rent or any other right against Tenant.
B. Lease Termination Damages. If Landlord terminates the Lease, Tenant
shall pay to Landlord all Rent due on or before the date of termination, plus
Landlord's reasonable estimate of the aggregate Rent that would have been
payable from the date of termination through the Termination Date, reduced by
the rental value of the Premises calculated as of the date of termination for
the same period, taking into account reletting expenses and market concessions,
both discounted to present value at the U.S. Treasury Bill rate that has a
maturity date which is closest to the last day of the Term. If Landlord shall
relet any part of the Premises for any part of such period before such present
value amount shall have been paid by Tenant or finally determined by a court,
then the amount of Rent payable pursuant to such reletting shall be deemed to
be the reasonable rental value for that portion of the Premises relet during
the period of the reletting.
C. Possession Termination Damages. If Landlord terminates Tenant's right
to possession without terminating the Lease and Landlord takes possession of the
Premises itself, Landlord may relet any part of the Premises for such Rent, for
such time, and upon such terms as Landlord in its sole discretion shall
determine, without any obligation to do so prior to renting other vacant areas
in the Building. Any proceeds from reletting the Premises shall first be
applied to the expenses of reletting, including redecoration, repair,
alteration, advertising, brokerage, legal, and other reasonably necessary
expenses. If the reletting proceeds after payment of expenses are insufficient
to pay the full amount of Rent under this Lease, Tenant
14
<PAGE> 21
shall pay such deficiency to Landlord monthly upon demand as it becomes
due. Any excess proceeds shall be retained by Landlord.
D. Landlord's Remedies Cumulative. All of Landlord's remedies under this
Lease shall be in addition to all other remedies Landlord may have at law or in
equity. Waiver by Landlord of any breach of an obligation by Tenant shall be
effective only if it is in writing, and shall not be deemed a waiver of any
other breach, or any subsequent breach of the same obligation. Landlord's
acceptance of payment by Tenant shall not constitute a waiver of any breach by
Tenant, and if the acceptance occurs after Landlord's notice to Tenant, or
termination of the Lease or of Tenant's right to possession, the acceptance
shall not affect such notice or termination. Acceptance of payment by Landlord
after commencement of a legal proceeding or final judgment shall not affect
such proceeding or judgment.
E. Waiver of Trial by Jury. Each party waives trial by jury in the event
of any legal proceeding brought by the other in connection with this Lease.
Each party shall bring any action against the other in connection with this
Lease in a federal or state courts located in Chicago, Illinois, consents to
the jurisdiction of such courts, and waives any right to have any proceeding
transferred from such courts on the ground of improper venue or inconvenient
forum.
F. Litigation Costs. The non-prevailing party in any lawsuit to enforce
this Lease shall pay the attorneys' fees and other costs of the prevailing
party.
14. SURRENDER. Upon termination of this Lease or Tenant's right to
possession, Tenant shall return the Premises to Landlord in good order and
condition, ordinary wear and casualty damage excepted.
15. HOLDOVER. If Tenant retains possession of any part of the Premises
after the Term, Tenant shall become a month-to-month tenant upon all of the
terms of this Lease as might be applicable to such month-to-month tenancy,
except that Tenant shall pay Base Rent at (i) 150% of the rate in effect
immediately prior to such holdover, and (ii) 200% of such rate beginning in the
third month of such holdover; with all such sums computed on a monthly basis
for each full or partial month Tenant remains in possession. If Tenant holds
over for more than one month, Tenant shall also pay Landlord all of Landlord's
direct and consequential damages, and in addition, if Tenant holds over for
more than three (3) months and if Landlord so elects by notice to Tenant, such
holdover shall constitute a renewal of this Lease for one year at the Market
Renewal Rate (defined below), but in no event less than the Rent payable
immediately prior to such holdover. No acceptance of Rent or other payments by
Landlord under these holdover provisions shall operate as a waiver of
Landlord's right to regain possession or any other of Landlord's remedies.
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. This Lease shall be subordinate to any future ground
lease or mortgage respecting the Project, and any amendments to such ground
lease or mortgage, at the election of the ground lessor or mortgagee as the
case may be; provided that, the effectiveness of such subordination is
conditioned upon Landlord causing the mortgagee or ground lessor to deliver to
Tenant a subordination, non-disturbance and attornment agreement, in form and
substance reasonably acceptable to such mortgagee or ground lessor, which
agreement shall provide that (i) this Lease shall be subordinate to any future
ground lease or mortgage respecting the Project, and any amendments to such
ground lease or mortgage, (ii) so long as Tenant is not in default under this
Lease after the expiration of any applicable notice and cure periods, Tenant
shall have the right to remain in possession under this Lease and to exercise
any of its rights under this Lease and all of its options and rights on the
terms and conditions set forth herein, even if the ground lease is terminated
or the mortgage foreclosed, and (ii) the Tenant shall attorn to such mortgagee
or ground lessor. As of the date of this Lease, there is no mortgage
encumbering the Project or the Land. The subordination, non-disturbance and
attornment shall be effective upon the date the Tenant and the ground lessor or
mortgagee, as the case may be, shall have each executed such subordination,
non-disturbance and attornment agreement.
B. Termination of Ground Lease or Foreclosure of Mortgage. If any ground
lease is terminated or mortgage foreclosed or deed in lieu of foreclosure given
and the ground lessor, mortgagee, or purchaser at a foreclosure sale shall
thereby become the owner of the Project, Tenant shall attorn to such ground
lessor or mortgagee or purchaser without any
15
<PAGE> 22
deduction or setoff by Tenant, and this Lease shall continue in effect
as a direct lease between Tenant and such ground lessor, mortgagee or
purchaser. The ground lessor or mortgagee or purchaser shall be liable as
Landlord only during the time such ground lessor or mortgagee or purchaser is
the owner of the Project. At the request of Landlord, ground lessor or
mortgagee, Tenant shall execute and deliver within ten (10) days of the request
any customary document furnished by the requesting party to evidence Tenant's
agreement to attorn.
C. Security Deposit. Any ground lessor or mortgagee shall be responsible
for the return of any security deposit by Tenant only to the extent the
security deposit is received by such ground lessor or mortgagee.
D. Notice and Right to Cure. The Project is subject to any ground lease
and mortgage identified with name and address of ground lessor or mortgagee in
any Appendix to this Lease. Tenant agrees to send by registered or certified
mail to any ground lessor or mortgagee identified either in such Appendix or in
any later notice from Landlord to Tenant a copy of any notice of default sent
by Tenant to Landlord. If Landlord fails to cure such default within the
required time period under this Lease, but ground lessor or mortgagee begins to
cure within ten (10) days after such period and proceeds diligently to complete
such cure, then ground lessor or mortgagee shall have such additional time as
is necessary to complete such cure, including any time necessary to obtain
possession if possession is necessary to cure, and Tenant shall not begin to
enforce its remedies so long as the cure is being diligently pursued, and
Tenant can continue to operate its business from the Premises.
E. Definitions. As used in this Section 16, "mortgage" shall include
"trust deed" and "mortgagee" shall include "trustee", "mortgagee" shall include
the mortgagee of any ground lessee, and "ground lessor", "mortgagee", and
"purchaser at a foreclosure sale" shall include, in each case, all of its
successors and assigns, however remote.
17. ASSIGNMENT AND SUBLEASE.
A. Specific Transactions. Provided no default has occurred and is
continuing under this Lease, upon ten (10) business days prior written notice
to Landlord (which notice shall also include detailed information as to the net
worth immediately prior to such assignment of both the proposed assignee or
successor entity and the Tenant), Tenant may, without Landlord's prior written
consent, assign this Lease to an entity into which Tenant is merged or
consolidated or to an entity to which substantially all of Tenant's assets are
transferred, provided the assignee or successor entity (a "Related Assignee")
has a net worth at least equal to the net worth of Tenant immediately prior to
such merger, consolidation or transfer. The rights of Tenant set forth in
Sections 34, 35, 36 and 38 below shall inure to the benefit of a Related
Assignee. Landlord may withhold its consent to an assignment or sublease if
Tenant is in default under the Lease, or if the proposed assignee or subtenant
is a tenant in the Project or an affiliate of such a tenant. In the case of a
proposed sublease where such sublease will not cause the aggregate subleased
rentable square footage to exceed 22,707 rentable square feet, Landlord may
otherwise withhold its consent only on the basis of the character of the
proposed subtenant or the use which the proposed subtenant intends to make of
the Premises, in all other cases, Landlord may withhold consent in its sole
discretion.
B. Consent Required. Except as provided in Paragraph A above, Tenant
shall not, without the prior consent of Landlord in each case, (i) make or
allow any assignment or transfer, by operation of law or otherwise, of any part
of Tenant's interest in this Lease, (ii) grant or allow any lien or
encumbrance, by operation of law or otherwise, upon any part of Tenant's
interest in this Lease, (iii) sublet any part of the Premises, or (iv) permit
anyone other than Tenant and its employees to occupy any part of the Premises.
A transfer of the direct or indirect power to affect the management or policies
of the Tenant, or a transfer of the stock of the Tenant, shall not constitute
an assignment of this Lease. No consent granted by Landlord shall relieve
Tenant of any of its obligations under this Lease, nor shall it be deemed to be
a consent to any subsequent assignment or transfer, lien or encumbrance,
sublease or occupancy. Tenant shall pay all of Landlord's attorneys' fees and
other expenses incurred in connection with any consent requested by Tenant.
Any assignment or transfer, grant of lien or encumbrance, or sublease or
occupancy without Landlord's prior written consent shall be void.
C. Procedure. Except as provided in Paragraph 17A above, Tenant shall
notify Landlord of any proposed assignment or sublease at least thirty (30)
days prior to its proposed effective date. The notice shall include the name
and address of the proposed assignee or subtenant, its corporate affiliates in
the case of a corporation and its partners in a case
16
<PAGE> 23
of a partnership, an execution copy of the proposed assignment or sublease.
Tenant will in all cases provide Landlord sufficient information to permit
Landlord to determine the character of the proposed assignee or subtenant and
the proposed use. For cases in which Landlord may use its discretion, Tenant
shall supply Landlord with any information Landlord reasonably requests in
order to make its determination. Tenant shall pay Landlord's costs in
reviewing any proposed assignment or sublease and granting or withholding its
consent. As a condition to any effective assignment of this Lease, the
assignee shall execute and deliver in form satisfactory to Landlord at least
fifteen (15) days prior to the effective date of the assignment, an assumption
of all of the obligations of Tenant under this Lease. As a condition to any
effective sublease, subtenant shall execute and deliver in form satisfactory to
Landlord at least fifteen (15) days prior to the effective date of the
sublease, an agreement to comply with all of Tenant's obligations under this
Lease (except for the economic obligations which subtenant will undertake
directly to Tenant), and at Landlord's option, an agreement to attorn to
Landlord under the terms of the sublease in the event this Lease terminates
before the sublease expires.
D. Excess Payments. If Tenant shall assign this Lease or sublet any part
of the Premises for consideration in excess of the pro-rata portion of Rent
applicable to the space subject to the assignment or sublet, then Tenant shall
pay to Landlord as Additional Rent 30% of any such excess immediately upon
receipt.
18. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its
interest in the Project or this Lease, Landlord shall be released of any
obligations occurring after such transfer, except the obligation to return to
Tenant any security deposit not delivered to its transferee, and Tenant shall
look solely to Landlord's successors for performance of such obligations. This
Lease shall not be affected by any such transfer.
19. ESTOPPEL CERTIFICATE. Each party shall, within twenty (20) days of
receiving a request from the other party, execute, acknowledge in recordable
form, and deliver to the other party or its designee a certificate stating,
subject to a specific statement of any applicable exceptions, that the Lease as
amended to date is in full force and effect, that the Tenant is paying Rent and
other charges on a current basis, and that to the best of the knowledge of the
certifying party, the other party has committed no uncured defaults and has no
offsets or claims. The certifying party may also be required to state the date
of commencement of payment of Rent, the Commencement Date, the Termination
Date, the Base Rent, the current Operating Cost Share Rent and Tax Share Rent
estimates, the status of any improvements required to be completed by Landlord,
and such other matters as may be reasonably requested. Failure to deliver such
statement within the time required shall be conclusive evidence against the
non-certifying party that this Lease, with any amendments identified by the
requesting party, is in full force and effect, that there are no uncured
defaults by the requesting party, that not more than one month's Rent has been
paid in advance, and that the non-certifying party has no claims or offsets
against the requesting party.
20. SECURITY DEPOSIT.
A. Tenant shall deposit with Landlord security for the performance of all
of its obligation in the amount determined by Landlord in accordance with the
Schedule and in the form set forth below. If Tenant defaults under this Lease,
Landlord may use any part of the Security Deposit to make any defaulted
payment, to pay for Landlord's cure of any defaulted obligation, or to
compensate Landlord for any loss or damage resulting from any default. To the
extent any portion of the Security Deposit is used, Tenant shall within five
(5) days after demand from Landlord reinstate the Letter of Credit (defined
below) to its full amount. If Tenant shall perform all of its obligations
under this Lease and return the Premises to Landlord at the end of the Term,
Landlord shall return either all of the remaining Security Deposit or the
Letter of Credit to Tenant. The Security Deposit shall not serve as an advance
payment of Rent or a measure of Landlord's damages for any default under this
Lease.
B. (1) The Security Deposit shall be in the form of an unconditional and
irrevocable letter of credit (the "Letter of Credit"), which Letter of
Credit shall (a) initially be in the amount as described in the Schedule
above, (b) be in substantially the form attached hereto as Appendix G, (c)
name Landlord as its beneficiary, (d) expressly allow Landlord to draw
upon it at any time or from time to time by delivering to the issuer
written notice that Landlord has the right to draw thereunder, (e) be
drawn on an FDIC-insured financial institution satisfactory to Landlord,
and (f) be redeemable in the State of New York. If Landlord is not
provided with a substitute Letter of Credit complying with
17
<PAGE> 24
all of the requirements hereof at least ten (10) days before the stated
expiration date hereof, then Landlord shall have the right to draw under
such Letter of Credit then held by Landlord and hold such funds as a
Security Deposit in accordance with the terms of this Section 20. The
Letter of Credit shall be delivered by Tenant to Landlord on or prior to
the date of this Lease.
(2) Tenant may provide Landlord with a replacement Letter of Credit,
in the amount described below, as of the first day of the 13th full month
after Tenant begins to make payments of Base Rent, and on each anniversary
of such date thereafter. If Tenant provides Landlord a replacement Letter
of Credit, Landlord shall release the prior Letter of Credit to Tenant
within ten (10) business days after the later to occur of (i) Landlord's
receipt of the replacement Letter of Credit, or (ii) Tenant's cure of all
defaults under this Lease. Such replacement Letters of Credit shall be in
an amount equal to the amount of the prior Letter of Credit less 10% of
the amount of the original Letter of Credit.
C. If Landlord transfers its interest in the Project or this Lease, Tenant
will cause the issuance of a new Letter of Credit for the benefit of the
transferee. Upon such transfer and return of the old Letter of Credit,
Landlord shall have no further obligation to return the Letter of Credit to
Tenant, and Tenant's right to the return of such Letter of Credit shall apply
solely against Landlord's transferee.
21. FORCE MAJEURE. Neither party shall be in default under this Lease to
the extent either party is unable to perform any of its obligations hereunder,
except for any payments due under this Lease, on account of any strike or labor
problem, energy shortage, governmental pre-emption or prescription, national
emergency, or any other cause of any kind beyond its reasonable control ("Force
Majeure").
22. INTENTIONALLY OMITTED.
23. NOTICES. All notices, consents, approvals and similar communications
to be given by one party to the other under this Lease, shall be given in
writing, mailed or personally delivered as follows:
A. Landlord. To Landlord as follows:
Teachers Insurance and Annuity Teachers Insurance and Annuity
Association of America Association of America
c/o Office of the Building 730 Third Avenue
Manager New York, New York 10017
200 North LaSalle Street Attn: Vice President
Chicago, Illinois 60601
or to such other person at such other address as Landlord may designate by
notice to Tenant.
B. Tenant. To Tenant at the address stated in the Schedule until Tenant
takes possession of the Premises, and thereafter at the Premises or such other
address as Tenant may designate by notice to Landlord.
Mailed notices shall be sent by United States certified or registered
mail, or by a reputable national overnight courier service, postage prepaid.
Mailed notices shall be deemed to have been given on the earlier of actual
delivery or three (3) business days after posting in the United States mail in
the case of registered or certified mail, and one business day in the case of
overnight courier.
24. QUIET POSSESSION. So long as Tenant shall perform all of its
obligations under this Lease, Tenant shall enjoy peaceful and quiet possession
of the Premises against any party claiming through the Landlord.
18
<PAGE> 25
25. REAL ESTATE BROKER. Tenant represents to Landlord that Tenant has not
dealt with any real estate broker with respect to this Lease except for
Miglin-Beitler Management Corporation and Equis, and no other broker claiming
by or through Tenant is in any way entitled to any broker's fee or other
payment in connection with this Lease.
26. MISCELLANEOUS.
A. Successors and Assigns. Subject to the limits on Tenant's assignment
contained in Section 14, the provisions of this Lease shall be binding upon and
inure to the benefit of all successors and assigns of Landlord and Tenant.
B. Date Payments Are Due. Except for payments to be made by Tenant under
this Lease which are deemed due upon demand, Tenant shall pay to Landlord any
amount for which Landlord renders a statement of account as permitted herein
within ten days of Tenant's receipt of Landlord's statement.
C. Meaning of "Landlord", "Re-Entry", "including" and "Affiliate". The
term "Landlord" means only the owner of the Project and the lessor's interest
in this Lease from time to time. The words "re-entry" and "re-enter" are not
restricted to their technical legal meaning. The words "including" and similar
words shall mean "without limitation." The word "affiliate" shall mean a
person or entity controlling, controlled by or under common control with the
applicable entity. "Control" shall mean the power directly or indirectly, by
contract or otherwise, to direct the management and policies of the applicable
entity.
D. Time of the Essence. Time is of the essence of each provision of this
Lease.
E. No Option. This document shall not be effective for any purpose until
it has been executed and delivered by both parties; execution and delivery by
one party shall not create any option or other right in the other party.
F. Severability. The unenforceability of any provision of this Lease
shall not affect any other provision.
G. Governing Law. This Lease shall be governed in all respects by the
laws of Illinois, without regard to the principles of conflicts of laws.
H. Broker's Commissions. Landlord shall pay any brokerage commission
owing to Miglin-Beitler Management Company who will then pay a portion of such
brokerage commission received from Landlord to Equis upon submission by Equis
of appropriate broker's lien waivers. Each party shall indemnify the other
against claims for brokerage commission by any other party claiming through the
indemnifying party.
I. No Oral Modification. No modification of this Lease shall be effective
unless it is a written modification signed by both parties.
J. Landlord's and Tenant's Right to Cure. If Landlord breaches any of its
obligations under this Lease, Tenant shall notify Landlord and shall take no
action respecting such breach so long as Tenant is able to operate its business
and Landlord immediately begins to cure the breach and diligently pursues such
cure to its completion within 120 days. Notwithstanding the foregoing, in the
event of an emergency (which is defined for purposes of this Paragraph J only
as an imminent threat of personal injury to Tenant's employees or material
damage to Tenant's equipment or other property at the Premises) which involves
an obligation of Landlord under this Lease where Tenant has attempted to notify
Landlord of the need to immediately perform such obligation, Tenant may satisfy
such obligation. If Tenant performs an obligation of Landlord in accordance
with this Paragraph J, Tenant may then sue Landlord for any reasonable and
verifiable expenses incurred by Tenant in satisfying such Landlord obligation
(but in no event more than $10,000 per emergency work performed prior to notice
to Landlord). Landlord may cure any default by Tenant, after providing notice
to Tenant and allowing Tenant the time period set forth in Section 12 above to
cure such default, except in the event of an emergency where Landlord may
immediately cure a default of Tenant, and any expenses incurred by Landlord
shall become Additional Rent due from Tenant on demand by Landlord.
19
<PAGE> 26
K. Captions. The captions used in this Lease shall have no effect on the
construction of this Lease.
L. Authority. Landlord and Tenant each represents to the other that it
has full power and authority to execute and perform this Lease.
M. Landlord's Enforcement of Remedies. Landlord may enforce any of its
remedies under this Lease either in its own name or through an agent.
N. Entire Agreement. This Lease, together with all Appendices,
constitutes the entire agreement between the parties. No representations or
agreements of any kind have been made by either party which are not contained
in this Lease.
O. Landlord's Title. Landlord's title shall always be paramount to the
interest of the Tenant, and nothing in this Lease shall empower Tenant to do
anything which might in any way impair Landlord's title.
P. Light and Air Rights. Landlord does not grant in this Lease any rights
to light and air in connection with Project. Landlord reserves to itself, the
Land, the Building below the improved floor of each floor of the Premises, the
Building above the ceiling of each floor of the Premises, the exterior of the
Premises and the areas on the same floor outside the Premises, along with the
areas within the Premises required for the installation and repair of utility
lines and other items required to serve other tenants of the Building.
Q. Consents. Neither party shall unreasonably withhold or delay any
consent or approval required under this Lease, except as specifically permitted
in this Lease.
R. Singular and Plural. Wherever appropriate in this Lease, a singular
term shall be construed to mean the plural where necessary, and a plural term
the singular. For example, if at any time two parties shall constitute
Landlord or Tenant, then the relevant term shall refer to both parties
together.
S. No Recording by Tenant. Tenant shall not record in any public records
any memorandum or any portion of this Lease.
T. Exclusivity. Except as provided in Section 41 below, Landlord does not
grant to Tenant in this Lease any exclusive right except the right to occupy
its Premises.
U. No Construction Against Drafting Party. The rule of construction that
ambiguities are resolved against the drafting party shall not apply to this
Lease.
V. Survival. All obligations of Landlord and Tenant under this Lease
shall survive the termination of this Lease.
W. Rent Not Based on Income. No rent or other payment in respect of the
Premises shall be based in any way upon net income or profits from the
Premises. Tenant may not enter into or permit any sublease or license or other
agreement in connection with the Premises which provides for a rental or other
payment based on net income or profit.
X. Building Manager and Service Providers. Landlord may perform any of
its obligations under this Lease through its employees, the building manager of
the Project, or third parties hired by the Landlord or the building manager.
Y. Interest on Late Payments. Interest shall be paid by Tenant to
Landlord on any late payments of Rent from the date due until paid at the rate
provided in Section 2D(3).
Z. Confidentiality. Both parties agree to not make any public announcement
of this Lease or the terms hereof, before or after the date of this Lease,
without the prior written consent of the other party; provided, however, that
both parties may make disclosure of this Lease to their respective lenders,
creditors, officers, employees and agents as necessary to perform
20
<PAGE> 27
their obligations hereunder; and both parties will make such disclosures
as may be required by law. It is the intent of the parties to make disclosure
of this Lease only in statements, the text of which is agreed upon by both
parties.
27. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at
any time that any part of the payments by Tenant to Landlord under this Lease
may be characterized as unrelated business income under the United States
Internal Revenue Code and its regulations, then Tenant shall enter into any
amendment proposed by Landlord to avoid such income, so long as the amendment
does not require Tenant to make more or higher payments, incur additional
liability or accept fewer services from Landlord, than this Lease provides.
28. HAZARDOUS SUBSTANCES. Tenant shall not cause or permit any Hazardous
Substances to be brought upon, produced, stored, used, discharged or disposed
of in or near the Project unless Landlord has consented to such storage or use
in its sole discretion. "Hazardous Substances" include those hazardous
substances described in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et
seq., any other applicable federal, state or local law, and the regulations
adopted under these laws (collectively, the "Environmental Laws"). If any
lender or governmental agency shall require testing for Hazardous Substances
in the Premises, Tenant shall pay for such testing.
29. EXCULPATION. Landlord shall have no personal liability under this
Lease; its liability shall be limited to its interest in the Project, and shall
not extend to any other property or assets of the Landlord.
30. ADDITIONAL SPACE/RETAIL SPACE/CONFIRMING AMENDMENT.
A. By providing written notice to Landlord within 60 days after the date
of this Lease, Tenant may request that all or any part of the 9th Floor
Expansion Space I (defined below) or any lower level space which is available
be included as a portion of the Premises. The portion of the lower level space
and the 9th Floor Expansion Space I so taken by Tenant is herein referred to as
the "Additional Space." Landlord shall deliver the Additional Space to Tenant
on the day following Landlord's receipt of Tenant's notice. The parties shall
amend this Lease to add such Additional Space to the Premises and modify all
terms of this Lease which will be impacted by the addition. The Commencement
Date for the Additional Space will be the same as that for the Office Space and
Lower Level Space, and Landlord shall provide Tenant with a full construction
allowance of $34.00 per rentable square foot with respect to such space.
B. Landlord will deliver to Tenant that certain retail space constituting
approximately 3,240 rentable square feet in the lobby of the Building, which
space is depicted on Appendix A attached hereto (the "Retail Space"), two (2)
business days after the present tenant completely vacates such space, but in no
event later than January 1, 1997 (such date of delivery being referred to
herein as the "Retail Space Delivery Date"), in "as-is" condition. Upon
delivery of the Retail Space to Tenant, such space shall become part of the
Premises, and Tenant's obligation to perform its obligations under this Lease
with respect to the Retail Space shall commence on the Retail Space Delivery
Date, except that Tenant's obligation to pay Base Rent in accordance with
Section 31B below shall commence on the earlier to occur of (i) 120 days after
the Retail Space Delivery Date, and (ii) the date Tenant opens for business
from the Retail Space. Landlord shall provide Tenant with a construction
allowance for the Retail Space equal to $34.00 per rentable square foot. Such
construction allowance shall be used by Tenant for the construction of
improvements in the Retail Space, and the disbursement of such allowance and
the performance of such improvements shall be in accordance with Appendix D
attached hereto.
C. If necessary, on or prior to the Commencement Date, Landlord and Tenant
shall enter into an agreement which sets forth the exact location of the
Premises, the rentable square footage of the Premises, Tenant's Proportionate
Share of the Building and the annual Base Rent and monthly installments of Base
Rent for the Premises for the entire Term.
21
<PAGE> 28
31. BASE RENT.
A. Base Rent for the Office Space and the Lower Level Space shall be in
accordance with the following schedule:
<TABLE>
Annual
Period Base Rent
------ ---------
<S> <C>
First Lease Year $6.16 per rentable square foot
Second Lease Year $6.41 per rentable square foot
Third Lease Year $6.66 per rentable square foot
Fourth Lease Year $6.91 per rentable square foot
Fifth Lease Year $7.16 per rentable square foot
Sixth Lease Year $7.41 per rentable square foot
Seventh Lease Year $7.66 per rentable square foot
Eighth Lease Year $7.91 per rentable square foot
Ninth Lease Year $8.16 per rentable square foot
Tenth Lease Year $8.41 per rentable square foot
Eleventh Lease Year $8.66 per rentable square foot
First day of the Twelfth
Lease Year through the
expiration of the Lease
Term $8.91 per rentable square foot
</TABLE>
B. Base Rent for the Retail Space shall be in accordance with
the following schedule:
<TABLE>
Annual
Period Base Rent
------ ---------
<S> <C>
First Lease Year $16.00 per rentable square foot
Second Lease Year $16.25 per rentable square foot
Third Lease Year $16.50 per rentable square foot
Fourth Lease Year $16.75 per rentable square foot
Fifth Lease Year $17.00 per rentable square foot
</TABLE>
22
<PAGE> 29
<TABLE>
<S> <C>
Sixth Lease Year $17.25 per rentable square foot
Seventh Lease Year $17.50 per rentable square foot
Eighth Lease Year $17.75 per rentable square foot
Ninth Lease Year $18.00 per rentable square foot
Tenth Lease Year $18.25 per rentable square foot
Eleventh Lease Year $18.50 per rentable square foot
First day of the Twelfth
Lease Year through the
expiration of the Lease
Term $18.75 per rentable square foot
</TABLE>
32. RENT ABATEMENT. Notwithstanding Sections 2 and 31 above, Tenant
shall not be required with respect to the Office Space and Lower Level
Space to pay for a period of the first 18 months of the Term either, or any,
Operating Cost Share Rent and Tax Share Rent in excess of the aggregate of $2.50
per rentable square foot, or any Base Rent. The rent abatement contemplated by
this Section 32 shall not apply to the Rent payable for the Retail Space. If
Tenant conveys the property that it currently owns at 130 South Canal Street,
Chicago, IL during the 18-month period of the rental abatement, then
notwithstanding the prior sentence, (i) the remaining period of Tenant's rent
abatement shall be reduced by the lesser of (a) six months, or (b) one-half of
the time remaining between Tenant's conveyance and the end of the scheduled
18-month rent abatement period, and (ii) as of the end of the reduced rent
abatement period, the value of the rent abatement lost by Tenant as the result
of such reduction shall be provided to Tenant in the form of equal reductions of
the monthly installments of Rent throughout the remaining balance of the Term.
The equal reductions of monthly installments shall be adjusted as necessary
after the Operating Cost Share Rent and Tax Share Rent have been finally
determined for the initially scheduled 18 month rent abatement.
33. ARBITRATION. The terms of this Section 33 shall be applicable to the
determination of any of the Market Renewal Rate and Market Expansion Rate,
which terms are respectively defined in Sections 34 and 35. Within five (5)
days after both parties have notified the other of their good faith estimate of
Market Renewal Rate or Market Expansion Rate, as applicable:
A. Landlord and Tenant shall commence negotiations to agree upon either
the Market Renewal Rate or Market Expansion Rate (to be multiplied by the
rentable square feet in the Premises or the subject Expansion Space applicable
thereto). If the Landlord and Tenant are unable to reach agreement on such
applicable rate within fourteen (14) days after the date negotiations
commenced, then Tenant may, by written notice to Landlord within five (5) days
after the expiration of such fourteen (14) day period, request to determine the
appropriate rate by arbitration.
B. Within seven (7) days after the receipt of a request by Tenant as
described in Paragraph A above, each party shall elect an arbitrator who is an
independent MAI appraiser with experience in real estate activities, including
at least five (5) years experience in appraising office space in the downtown
Chicago, Illinois area (a "Qualified Appraiser"). Within a second period of
seven (7) days, the two appointed Qualified Appraisers shall select a third
Qualified Appraiser and the third Qualified Appraiser shall be the arbitrator
who shall determine the Market Renewal Rate or Market Expansion Rate, as
applicable. If one party shall fail to appoint a Qualified Appraiser within
the first seven (7) day period, then the Qualified Appraiser chosen by the
other party shall be the sole arbitrator.
23
<PAGE> 30
C. Once the arbitrator has been selected as provided above, then both
parties shall submit to the arbitrator their good faith estimate of Market
Renewal Rate or Market Expansion Rate, as applicable, within three (3) days
after the selection of the arbitrator and as soon thereafter as practicable,
but in any case within fourteen (14) days after receipt of the good faith
estimates, the arbitrator shall select one of the two estimates of Market
Renewal Rate or Market Expansion Rate, as applicable, which shall be the one
that is closer to the arbitrator's good faith estimate of the true Market
Renewal Rate or Market Expansion Rate. The value so selected shall be deemed
the Market Renewal Rate or Market Expansion Rate, as applicable. The decision
of the arbitrator shall be submitted in writing to, and be final and binding
on, the Landlord and Tenant. If the arbitrator believes that expert advice
would materially assist him, he may retain one or more qualified persons,
including but not limited to, legal counsel, brokers, architects or engineers,
to provide such expert advice. The party whose estimate is not chosen by the
arbitrator shall pay the costs of the arbitrator and of any experts retained by
the arbitrator. Any fees of any counsel or expert engaged directly by the
Landlord or Tenant, however, shall be borne by the party retaining such counsel
or expert.
34. EXTENSION OPTIONS. Subject to Sections 34B, C and D below, the Term
of this Lease may be extended, at the option of Tenant, for three additional
periods of five (5) years (each a "Renewal Term"). Any such Renewal Term shall
be upon the same terms contained in this Lease, excluding the provisions of
Section 32 and Appendix D of this Lease and except for the amount of Base Rent
payable during such Renewal Term, and any reference in the Lease to the "Term"
of this Lease shall be deemed to include such Renewal Term and apply thereto,
unless it is expressly provided otherwise. Tenant shall have no extension
options beyond the aforesaid options. Any termination of this Lease during the
initial Term of this Lease or any Renewal Term shall terminate all further
rights under this Section 34.
A. The initial Base Rent during any Renewal Term for any space then
constituting a portion of the Premises shall be at a rate equal to the Market
Renewal Rate. Tenant's obligation to pay Operating Cost Share Rent and Tax
Share Rent pursuant to Section 2A of this Lease shall continue during each
Renewal Term.
B. Such option to extend shall be exercised by Tenant delivering an
initial non-binding written notice to Landlord not less than twelve (12) full
calendar months prior to the expiration of the initial Term or current Renewal
Term, as applicable, of this Lease. Thereafter, both parties shall calculate
their good faith estimate of the Market Renewal Rate and notify the other of
such determination not less than 11 calendar months prior to the expiration of
the Term or current Renewal Term, as applicable, and then the terms of Section
33 above shall apply as to the procedure for determining the Market Renewal
Rate.
C. Tenant's right to exercise its options to extend this Lease pursuant to
this Section 33, is subject to the following conditions: (i) that on the date
that Tenant delivers its final binding written notice of its election to
exercise the subject option to extend, Tenant is not in default under any of
the terms of this Lease, after the expiration of any applicable notice and cure
periods and no unmatured event of default has occurred and is continuing, and
(ii) if applicable, Tenant has exercised its extension option for the prior
Renewal Term or Renewal Terms, as the case may be.
D. If Tenant fails to give its initial non-binding written notice of
intent or its final binding written notice of intent to exercise its options to
extend when due as provided in this Section 34, Tenant will be deemed to have
waived such option to extend.
E. For purposes of this Lease, the following terms shall have the
following meanings:
"Comparable Building" shall mean office buildings in the area of downtown
Chicago in which the Building is located, or in comparable areas of downtown
Chicago, which are comparable to the Building in reputation, quality, age,
size, location, and level and quality of services provided, and which have
similar levels of occupancy as the Building.
"Market Renewal Rate" shall be based on the then prevailing gross rent per
square foot of rentable area at which a financially responsible landlord and
tenant would agree in an arm's-length transaction to a lease of all of the
Premises for the applicable Renewal Term, converted to a net or base rent as
provided herein. Such prevailing gross rent will be
24
<PAGE> 31
converted back into a net or base rent (which shall then be the Market
Renewal Rate for purposes of this Lease) by the deduction of the sum of the
then-current amounts of Operating Cost Share Rent, Tax Share Rent and Additional
Rent per square foot payable under this Lease. The Market Renewal Rate may, if
requested by Landlord, be restated to include an annual escalation of the
initial net or base rent equal to the average annual escalation prevailing among
the Comparables provided that the net present value (using the Discount Rate) of
the net or base rent payments to be made by Tenant as so escalated shall be
equal to the net present value (using the Discount Rate) of the net or base rent
payments which would be made by Tenant under this Lease without such escalation.
"Discount Rate" shall mean, at any time, the rate of interest (assuming
monthly compounding) then in general use by the real estate community in
downtown Chicago in making present value calculations at such time.
"Effective Market Rent" shall mean, with respect to any Comparable, the
monthly annuity payment (based on an interest rate equal to the Discount Rate)
needed to produce a net present value to the landlord during the term of such
Comparable equal to the net present value of all gross rental payments (net or
base rental payments plus payments on account of taxes and expenses) less the
net present value of the cost of all Tenant Concessions. In computing
Effective Market Rent, present values of rental streams and of the cost of
Tenant Concessions shall be calculated using the Discount Rate.
"Comparable" shall mean any new lease or renewal lease (but not sublease)
of office space in excess of the lesser of (i) 100,000 rentable square feet, or
(ii) the number of rentable square feet Tenant occupies in the Premises as of
the date Tenant delivers its initial non-binding written notice to Landlord of
its election to extend or expand, as applicable, at the Building or any
Comparable Building. Comparables shall exclude any expansion or renewal at a
rent agreed to at an earlier date pursuant to a tenant's expansion or renewal
option.
"Tenant Concessions" shall mean, with respect to this Lease or the
applicable Comparable, (i) rent concessions, rent abatements, free rent, or
similar rent relief thereunder, and (ii) all costs incurred by the landlord
thereunder to provide tenant improvements, pay legal fees and space planning
fees, pay leasing commissions, assume existing lease obligations (after netting
out the reasonable projected recovery thereon), pay moving expenses for the
tenant and make any other payments to or for the benefit of the tenant
thereunder.
The Market Renewal Rate shall be determined for each exercise of Tenant's
right to extend this Lease under this Section 34.
In determining the Market Renewal Rate, the Market Renewal Rate shall be
established by reference to the Effective Market Rate for the relevant
Comparables. In considering Comparables, lease renewals shall be given greater
consideration than new leases.
The Market Renewal Rate for any renewal shall be adjusted, upward or
downward, from the Effective Market Rent for the respective Comparables, to
reflect the following factors:
(y) The Market Renewal Rate shall be adjusted to take into account
appropriate factors such as (i) any differences in loss factors used in
determining the rentable areas of the leased premises of the Comparables
considered and the subject portions of the Premises, (ii) any differences in
the length of the term of the Comparables considered and the term of this
Lease, (iii) any difference between the height of the Comparables and that of
the subject portions of the Premises, and (iv) any material variances between
the definitions of Taxes and Operating Costs under this Lease and the
definitions of taxes and operating costs with respect to any of the Comparable
Buildings.
(z) If a Tenant Concession is made available to Tenant as provided in the
following paragraph, the Market Renewal Rate shall be increased to reflect the
amortization of the cost of such Tenant Concession over the term of such
renewal, on a level-payment basis at the Discount Rate.
25
<PAGE> 32
If Landlord is willing to make available, and Tenant desires, as a
Tenant Concession, an allowance for improvements to the Premises to be applied
to any purpose to which the Landlord's Contribution could be applied pursuant to
Appendix D below, Landlord may make such allowance available and the Market
Renewal Rate shall be increased accordingly as provided in subparagraph (z)
above.
35. EXPANSION OPTIONS. Subject to Section 35D below, Tenant shall have
and is hereby granted the options described in Section 35B below to add to the
Premises the 9th Floor Expansion Space I (hereinafter defined) and the 9th
Floor Expansion Space II (hereinafter defined) for the remaining Term of this
Lease (including any Renewal Term) upon the same terms contained in this Lease
except Section 32 and Appendix D of this Lease and the Base Rate for such
Expansion Space shall be at the Market Expansion Rate (defined below), and
provided that any space added to the Premises pursuant to this Section 35 shall
be delivered "as is," and Landlord shall have no obligation to contribute to
the cost of any construction or remodeling by Tenant, nor shall Landlord be
obligated to perform any construction in connection with such space. Tenant's
obligations to pay Operating Cost Share Rent, Tax Share Rent and Base Rent for
any particular Expansion Space shall commence on the date such space is
actually made available to Tenant to be added to the Premises. In the event
that Tenant exercises either of its expansion options pursuant to Section 35B
below, the Expansion Space thereby added to the Premises shall become a part
of the Premises for all purposes of this Lease, and any reference in this
Lease to the term "Premises" shall be deemed to refer to and include any such
Expansion Space, except as expressly provided otherwise in this Lease.
A. (1) On a date specified by Landlord during the period beginning with
the first day of the third Lease Year and continuing until the last day of the
third Lease Year, Tenant shall have the right to expand into 11,353 rentable
square feet on the 9th floor of the Building depicted on Appendix A attached
hereto less any portion of such space Tenant leases as Additional Space
pursuant to Section 30A above (the "9th Floor Expansion Space I"), at the
Market Expansion Rate applicable to the 9th Floor Expansion Space I.
(2) On a date specified by Landlord during the period beginning with the
first day of the fifth Lease Year and continuing until the last day of the
fifth Lease Year, Tenant shall have the right to expand into 11,354 rentable
square feet (the "9th Floor Expansion Space II") on the 9th floor of the
Building depicted on Appendix A attached hereto at the Market Expansion Rate
applicable to the 9th Floor Expansion Space II.
B. Landlord shall give written notice to Tenant of the date on which such
Expansion Space shall become available to the Tenant to be added to the
Premises (the "Availability Date") not less than fourteen (14) months in
advance of the Availability Date. Within fifteen (15) business days after
receipt of such notice from Landlord, Tenant may deliver a non-binding written
notice to Landlord of its desire to exercise the subject option to expand.
Thereafter, both parties shall calculate their good faith estimate of the
Market Expansion Rate for the subject Expansion Space and notify the other of
such determination not less than thirteen (13) calendar months prior to the
Availability Date for the particular Expansion Space, then the terms of Section
33 above shall apply as to the procedure for determining the subject Market
Expansion Rate. If Tenant fails to give its non-binding written notice of its
desire to exercise the subject to expand when due as hereinabove provided,
Tenant will be deemed to have waived such particular option to expand (but such
waiver shall not affect Tenant's rights under Sections 36 and 38 below).
C. Promptly after Tenant's exercise of such expansion option and the final
determination of the Market Expansion Rate, Landlord shall prepare an amendment
to the Lease to reflect changes in the size of the Premises, Base Rent,
Tenant's Proportionate Share and any other appropriate terms, due to the
addition of the subject Expansion Space. Tenant shall execute and return such
an amendment to this Lease within fifteen (15) days after its submission to
Tenant.
D. Tenant's right to exercise its options to expand pursuant to this
Section 35, is subject to the following conditions: (i) that on the date that
Tenant delivers its binding written notice of its election to exercise the
subject option to expand, Tenant is not in default under any of the terms of
this Lease after the expiration of any applicable notice and cure periods and
no unmatured event of default has occurred and is continuing, (ii) that Tenant
shall not have assigned this Lease, except to a Related Assignee, and (iii)
Tenant continues to occupy a minimum of 80,000 rentable square feet in the
Building.
26
<PAGE> 33
E. For purposes of this Section 35, "Market Expansion Rate" shall mean
the then prevailing gross rent per square foot of rentable area at which
a financially responsible landlord and tenant would agree in an arm's length
transaction to a lease of all of the subject Expansion Space for the balance of
the initial Term, converted to a net or base rent as provided herein. Such
prevailing gross rent will be converted back into a net or base rent (which
shall then be the Market Expansion Rate for purposes of this Lease) by the
deduction of the sum of the then-current amounts of Operating Cost Share Rent,
Tax Share Rent and Additional Rent per square foot payable under this Lease. The
Market Expansion Rate may, if requested by Landlord, be restated to include an
annual escalation of the initial net or base rent equal to the average annual
escalation prevailing among the Comparables provided that the net present
value (using the Discount Rate) of the net or base rent payments to be made by
Tenant as so escalated shall be equal to the net present value (using the
Discount Rate) of the net or base rent payments which would be made by Tenant
under this Lease without such escalation.
The Market Expansion Rate shall be determined for each exercise of
Tenant's right to expand under this Section 35.
In determining the subject Market Expansion Rate, such Market Expansion
Rate shall be established by reference to the Effective Market Rate for the
relevant Comparables. In considering Comparables, lease expansions shall be
given greater consideration than new leases.
The Market Expansion Rate for any expansion shall be adjusted, upward or
downward, from the Effective Market Rent for the respective Comparables, to
reflect the following factors:
(y) The Market Expansion Rate shall be adjusted to take into account
appropriate factors such as (i) any differences in loss factors used in
determining the rentable areas of the leased premises of the Comparables
considered and the subject Expansion Space, (ii) any differences in the length
of the term of the Comparables considered and the term of this Lease, (iii) any
difference between the height of the Comparables and that of the subject
Expansion Space, and (iv) any material variances between the definitions of
Taxes and Operating Costs under this Lease and the definitions of taxes and
operating costs with respect to any of the Comparable Buildings.
(z) If a Tenant Concession is made available to Tenant as provided in the
following paragraph, the Market Expansion Rate shall be increased to reflect
the amortization of the cost of such Tenant Concession over the remaining
initial Term of this Lease, on a level-payment basis at the Discount Rate.
If, notwithstanding the other terms of this Section 35, Landlord is
willing to make available, and Tenant desires, as a Tenant Concession, an
allowance for improvements to the subject Expansion Space to be applied to any
purpose to which the Landlord's Contribution could be applied pursuant to
Appendix D below, Landlord may make such allowance available and the Market
Expansion Rate shall be increased accordingly as provided in subparagraph (z)
above.
36. RIGHT OF FIRST OFFER ON OTHER OFFICE SPACE. Subject to Section 36B
and C below, and subject to the expansion or renewal options of current tenants
in the Building (individually, a "Prior Tenant"), during the Term, Tenant shall
have a right of first offer on any portion of the Building that is located in
the same elevator bank as the Office Space as currently constituted, including
the 9th Floor Expansion Space I and 9th Floor Expansion Space II (collectively,
the "Office ROFO Space"), which right shall be exercised in accordance with the
procedures set forth in this Section 36.
A. If, at any time during the Term of this Lease, any Office ROFO Space
becomes available for lease to anyone other than a Prior Tenant, Landlord shall
give written notice thereof to Tenant (the "Landlord's Office ROFO Notice")
identifying that portion of the Office ROFO Space that is available (the
"Subject Office ROFO Space") and containing a calculation of the Annualized
Gross Rental Rate (defined below) as to the Subject Office ROFO Space.
Landlord's Office ROFO Notice may be given at any time up to twelve (12) months
in advance of such availability and shall contain the terms upon which Landlord
intends to offer the Subject Office ROFO Space for lease to the market. Tenant
shall notify Landlord within ten (10) days of receipt of a Landlord's Office
ROFO Notice (a "Response Notice") whether it desires to lease the Subject
Office ROFO Space on the terms set forth in Landlord's Office ROFO Notice;
provided, however, a failure to notify
27
<PAGE> 34
Landlord within such 10-day period (the "Initial Response Period") shall
be deemed a refusal by Tenant. After any such refusal or deemed refusal,
subject to Section 35 above and Paragraph B below, Landlord shall be free to
lease such space to any person or entity for any term. Except as provided in
Paragraph E below, if Tenant exercises its right of first offer with respect to
such Subject Office ROFO Space, such space shall be added to the Premises for
the remaining Term of this Lease (including the Renewal Terms) on (a) all the
terms, covenants and conditions specified in the Landlord's Office ROFO Notice,
and (b) the terms, covenants and conditions of this Lease to the extent that
such terms, covenants and conditions of this Lease do not conflict with the
terms, covenants and conditions specified in the Landlord's Office ROFO Notice;
provided, however, that notwithstanding anything herein to the contrary, during
the Renewal Terms, Base Rent, Operating Cost Share Rent, Tax Share Rent and
Additional Rent and all other economic terms applicable to any Office ROFO Space
shall be adjusted in the manner provided in Section 34 above, and the rent and
other economic terms described in the Landlord's Office ROFO Notice shall not
apply during any such Renewal Term. Any Office ROFO Space added to the Premises
pursuant to this Section 36 shall become a part of the Premises for all purposes
of this Lease, and any reference in this Lease to the term "Premises" shall be
deemed to refer to and include such portion of the Office ROFO Space, except as
expressly provided otherwise in this Lease.
B. If Tenant does not exercise its right of first offer with respect to
any Subject Office ROFO Space, then for nine (9) months after the Initial
Response Period, Landlord shall be free to lease the Subject Office ROFO Space
to another tenant, provided that if the Landlord intends to offer such space
for less than 90% of the Annualized Gross Rental Rate set forth in the
Landlord's Office ROFO Notice, Landlord must first offer the space again to
Tenant and Tenant shall again have the rights described in this Section 36.
For purposes of this Section 36, "Annualized Gross Rental Rate" shall mean,
with respect to any particular Subject Office ROFO Space, the annualized net
present value, using the Discount Rate, of the sum of (i) the net effective
rent, taking into account all Tenant Concessions, and (ii) the applicable
proportionate share of Operating Costs and Taxes.
C. Tenant's right to exercise a right of first offer with respect to any
portion of the Office ROFO Space pursuant to this Section 36, is subject to the
following conditions: (i) that on the date that Tenant delivers its Response
Notice of its election to exercise a right of first offer, Tenant is not in
default under any of the terms of this Lease, and no unmatured event of default
has occurred and is continuing; (ii) that Tenant shall not have assigned this
Lease, except to a Related Assignee; and (iii) Tenant continues to occupy a
minimum of 80,000 rentable square feet in the Building.
D. Promptly after Tenant's exercise of its right of first offer pursuant
to this Section 36, Landlord shall prepare an amendment to this Lease to
reflect changes in the size of the Premises, Base Rent, Tenant's Proportionate
Share and any other appropriate terms, due to the addition of the Subject
Office ROFO Space. Tenant shall execute and return such an amendment to this
Lease within fifteen (15) days after its submission to Tenant.
E. If Tenant occupies either the 9th Floor Expansion Space I or the 9th
Floor Expansion Space II pursuant to the terms of this Section 36 and then
exercises its expansion option for such space in accordance with Section 35
above, the right of first offer term for the subject Expansion Space shall
terminate on the day such expansion becomes effective (or would have become
effective).
37. INTENTIONALLY OMITTED.
38. RIGHT OF FIRST REFUSAL. Subject to Section 38B below, if Tenant
fails to exercise its options to expand into either or both of the 9th
Floor Expansion Space I or the 9th Floor Expansion Space II (the portion of 9th
Floor Expansion Space I and the 9th Floor Expansion Space II which Tenant did
not expand into is referred to herein as the "9th Floor Space") in accordance
with Section 35 above, beginning on the first day of the sixth Lease Year and
continuing through the Term of this Lease, Tenant shall have a right of first
refusal on the 9th Floor Space, which right shall be exercised in accordance
with the procedures set forth in Section 38A below and the right of first
refusal described in this Section 38 shall thereafter, with respect to the 9th
Floor Space only, supersede the terms of Section 36 above. Tenant's right of
first refusal contained in this Section 38 is in addition to Tenant's rights
under Sections 35 and 36 above.
28
<PAGE> 35
A. If Landlord shall receive a bona fide offer to lease all or any
portion of the 9th Floor Space, Landlord shall give written notice
thereof to Tenant ("Landlord's ROFR Notice"), which notice shall have attached
thereto a summary of such offer, including the name and address of the proposed
tenant and the basic economic terms of the offer (the "Initial Offer"). If
Tenant shall elect to exercise its right of first refusal, it shall notify
Landlord of its election in writing within ten (10) days after receipt of
Landlord's ROFR Notice. If Tenant exercises its right of first refusal, such
space shall be added to the Premises for the remaining Term of this Lease on (a)
all of the terms, covenants and conditions specified in the Initial Offer,
except as provided in the next sentence, and (b) the terms, covenants and
conditions of this Lease to the extent that such terms, covenants and conditions
of this Lease do not conflict with the Initial Offer; provided, however, that
notwithstanding anything contained herein to the contrary, during the Renewal
Terms, rent and all other economic terms applicable to the 9th Floor Space shall
be adjusted in the manner provided in Section 34 hereof, and the rent and other
economic terms described in the Initial Offer shall not apply in any Renewal
Term. Notwithstanding the foregoing, if the lease term set forth in the Initial
Offer will end after the expiration of the Term, such lease term shall be
revised to be coterminous with the Term and any build-out allowances and other
rent concessions provided for in the Initial Offer shall be reduced by
multiplying such amounts by a fraction, the numerator of which shall be the
number of months in the period beginning on the commencement date proposed in
the Initial Offer and ending on the Termination Date, and the denominator of
which shall be the number of months of the term proposed in the Initial Offer.
If the 9th Floor Space shall be added to the Premises pursuant to this Section
38, it shall become a part of the Premises for all purposes of this Lease, and
any reference in this Lease to the term "Premises" shall be deemed to refer to
and include the 9th Floor Space, except as expressly provided otherwise in this
Lease.
If Tenant shall not exercise its right of first refusal, Tenant shall have
no further rights with respect to the 9th Floor Space, unless such lease is not
actually fully executed and delivered, in which case Tenant shall have a right
of first refusal with respect to the next proposed lease for such 9th Floor
Space.
B. Tenant's right to exercise its right of first refusal with respect to
the 9th Floor Space pursuant to this Section 38 is subject to the following
conditions: (i) that on the date that Tenant delivers its written notice of its
election to exercise the right of first refusal with respect to such 9th Floor
Space, Tenant is not in default under any of the terms of this Lease and no
unmatured event of default has occurred and is continuing; (ii) that Tenant
shall not have assigned this Lease, except to a Related Assignee; and (iii)
Tenant continues to occupy a minimum of 80,000 rentable square feet in the
Building.
C. Promptly after Tenant's exercise of its right of first refusal
pursuant to this Section 38, Landlord shall prepare an amendment to this
Lease to reflect changes in the size of the Premises, Base Rent, Tenant's
Proportionate Share and any other appropriate terms, due to the addition of the
9th Floor Space. Tenant shall execute and return such an amendment to this
Lease within fifteen (15) days after its submission to Tenant.
39. TERMINATION OPTIONS. Notwithstanding anything contained herein to the
contrary, if there are no uncured defaults by Tenant hereunder, Tenant shall
have the option to either terminate this Lease (i) in its entirety, or (ii)
with respect to one full office floor of the Premises (a "Floor"; the
"Termination Option"), effective as of the first day of the seventy-eighth
(78th) month of the Term (the "Early Termination Date") by delivering its
written notice of intent to terminate this Lease in whole or in part as
aforesaid (the "Termination Notice") to Landlord on or before the first day of
the 66th month of the Term and paying Landlord one-half of the appropriate
Termination Fee (hereinafter defined) with the Termination Notice. As of the
date of this Lease, the "Full Termination Fee," as may be adjusted below, is an
amount equal to $5,065,108.64, and the "Floor Termination Fee," as may be
adjusted below, is an amount equal to $958,061.96. Tenant shall pay Landlord
the balance of the appropriate Termination Fee at least 30 days prior to the
Early Termination Date.
If Tenant delivers its Termination Notice in accordance with the terms
and conditions of this Section 39, then as of (i) the delivery of the
Termination Notice, if Tenant has elected to terminate this Lease with respect
to all of the Premises, Tenant shall have no further rights under Sections 36
and 38 above, and (ii) the Early Termination Date, this Lease shall terminate
with respect to all of the Premises or the Floor, as applicable, and Tenant
shall be and remain liable for the payment to Landlord of all rent and other
sums due or accrued, and for the performance prior to the Early Termination
Date, and if the termination is just as to the Floor, this Lease shall continue
in full force and effect with respect to the balance of the Premises still
subject to this Lease. In the event that Tenant fails to completely vacate the
Premises or the Floor, as applicable,
29
<PAGE> 36
and surrender possession thereof to Landlord in accordance with this
Lease on or prior to the Early Termination Date, such failure shall be treated
as a holding over by Tenant, and Landlord shall be entitled to all of its
remedies therefor pursuant to Section 12 of this Lease. If Tenant fails to
deliver its Termination Notice and one-half of the appropriate Termination Fee,
when due as hereinabove provided, Tenant will be deemed to have waived such
Termination Option. If Tenant fails to pay the balance of the appropriate
Termination Fee at least 30 days prior to the Early Termination Date, at
Landlord's option (i) such termination shall be null and void, and this Lease
shall continue in full force and effect with respect to all of the Premises or
the Floor, as appropriate, as if Tenant had not exercised such termination
right, or (ii) this Lease shall terminate with respect to all of the Premises or
the Floor, as appropriate, and Tenant shall pay Landlord, upon demand, the
balance of the appropriate Termination Fee and all of Landlord's direct and
consequential damages.
The computation of the Termination Fee is based upon the Tenant
Concessions given by Landlord to Tenant (assuming a full abatement period),
amortized evenly over the portion of the Term falling after the expiration of
the rent abatement period set forth in Section 32 above, on a monthly basis, at
10%, with the unamortized portion payable as of the Early Termination Date as
the subject Termination Fee (the calculation of the Termination Fee, as may be
diminished by the operation of this sentence, is set forth on Appendix H
attached hereto); provided that if the rent abatement described in Section 32
above is reduced and spread pursuant to such Section 32, then the Tenant
Concessions in this formula shall be reduced by the amount of such reduction,
the reduced amount of the Tenant Concessions shall be amortized as provided
above, and the Termination Fee shall be diminished accordingly. If Landlord
and Tenant amend this Lease and such amendment will impact the dollar amount of
either Termination Fee, the parties will utilize the formula set forth in the
preceding sentence to compute such amended Termination Fee.
40. SATELLITE DISH. Landlord hereby grants Tenant the right to install,
maintain and, from time to time, replace a satellite dish (a "Dish") on the
roof of the Building, subject to the following: (a) applicable governmental
laws; (b) the right of Landlord to supervise any roof penetrations; (c)
compliance with the conditions of any roof bond maintained by Landlord on the
Building; (d) the Dish not being visible at street level; and (e) Landlord's
reasonable approval of the size and weight of the Dish and Tenant's proposed
methods for fastening the Dish to the roof of the Building. Tenant shall be
responsible for the repair of any damage to any portion of the Building caused
by Tenant's installation, use or removal of the Dish. The Dish shall remain
the exclusive property of Tenant, and Tenant shall have the right to remove the
same at its sole cost and expense at any time during the Term so long as Tenant
is not in default under this Lease. Tenant shall protect, defend, indemnify
and hold harmless Landlord from and against any and all claims, damages,
liabilities, costs of expenses of every kind and nature (including without
limitation attorneys' fees) incurred by or asserted against Landlord arising
out of Tenant's installation, maintenance, use or removal of the Dish. The
area where the Dish will be located on the roof of the Building shall not be
included as a portion of the Premises unless Tenant is charging a third party
for using the Dish, in which event Tenant shall pay Base Rent with respect to
the space occupied by such Dish at the prevailing market rate.
41. SIGNAGE/ADVERTISING.
A. Landlord shall, at Tenant's request and at Tenant's sole cost and
expense (including, without limitation, costs related to design, construction,
maintenance, and removal):
(1) (a) rename the Building to "The Florsheim Building," "Florsheim
Tower," "Florsheim Plaza" or similar name to be agreed upon between Landlord
and Tenant, and (b) use commercially reasonable efforts to use such new name of
the Building in all of its advertising materials (notwithstanding the
foregoing, Landlord's costs in performing its obligations under this clause (b)
shall not be directly chargeable to Tenant);
(2) provide signage on the existing sign band above the main entrance
doors on both the LaSalle Street and Lake Street frontages; and
(3) provide interior lobby signage above the eastern flower box on the
side wall of the Tenant's main elevator bank, which signage will be larger than
any other similar signage of any other tenants at the Project.
30
<PAGE> 37
B. Tenant may, at its sole cost and expense, install signage in the
elevator lobbies of every floor it completely occupies. So long as Tenant
satisfies the conditions set forth in this Section 41, the rights granted to
Tenant in Paragraphs A(1) and A(3) above, and in this Paragraph B, shall be
exclusive to Tenant.
C. All signage at the Building or Premises shall comply with all
applicable governmental rules, regulations and codes and Tenant shall obtain
all applicable governmental permits and approvals for such signage. The
exercise of the rights referred to in this Section 41 shall be subject to
Landlord's prior approval and Tenant shall provide Landlord with all
information Landlord requires in order to approve or disapprove the same.
D. Tenant's rights in Paragraph A above are subject to the condition that
(i) Tenant continues to occupy a minimum of 80,000 rentable square feet in the
Building, or (ii) Tenant continues to occupy between 68,120 rentable square
feet and 80,000 rentable square feet in the Building, and no other tenant in
the Project leases more rentable square feet than Tenant and desires to benefit
from such rights.
42. LOBBY RIGHTS.
A. With Landlord's prior consent, which consent may be withheld in
Landlord's reasonable discretion, Tenant may (i) locate a display area in the
lobby in the area depicted on Appendix A attached hereto, and (ii) hold
Tenant-functions in the lobby after normal business hours. Such display area
and after-hours functions will not interfere with normal operations or traffic
patterns at the Building and Tenant will reimburse Landlord for any additional
Operating Costs incurred by Landlord as a result of such display or after-hours
functions. Tenant shall protect, defend, indemnify and hold harmless Landlord
from and against any and all claims, damages, liabilities, costs or expenses of
every kind and nature, including, without limitation, attorneys' fees (imposed
upon or incurred by or asserted against Landlord) arising out of Tenant's
exercise of the rights contained in this Section 42. Tenant shall (i) comply
with any requirements of Landlord's insurer relating to Tenant's exercise of
its rights under this Section 42, and (ii) reimburse Landlord upon demand for
any increases in Landlord's insurance premiums brought about by Tenant's
exercise of its rights under this Section 42.
B. Tenant's ability to exercise and benefit from its rights set forth in
this Section are conditioned upon Tenant continuing to occupy a minimum of
80,000 rentable square feet in the Building.
31
<PAGE> 38
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
LANDLORD:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA, a New York corporation
By: /s/ S. Marc Flannery
------------------------------------------
Print Name: S. Marc Flannery
----------------------------------
Print Title: Assistant Secretary
---------------------------------
TENANT:
THE FLORSHEIM SHOE COMPANY, a Delaware
corporation
By: /s/ Larry J. Svoboda
------------------------------------------
Print Name: Larry J. Svoboda
----------------------------------
Print Title: Vice President, Finance & Chief
-------------------------------
Financial Officer
------------------------------
32
<PAGE> 39
APPENDIX A
DEPICTION OF THE PREMISES
DEPICTION OF THE RETAIL SPACE
DEPICTION OF DISPLAY AREA IN LOBBY
DEPICTION OF FULL 9TH FLOOR EXPANSION SPACE I
DEPICTION OF 9TH FLOOR EXPANSION SPACE II
APPENDIX A
Page 1 of 1
<PAGE> 40
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
- -------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 15 -
- --------------------------------------------
22,707 RENTABLE SQUARE FEET NORTH
<PAGE> 41
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
- -------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 14 -
- --------------------------------------------
22,707 RENTABLE SQUARE FEET NORTH
<PAGE> 42
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
- -------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 12 -
- --------------------------------------------
22,707 RENTABLE SQUARE FEET NORTH
<PAGE> 43
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
- -------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 11 -
- --------------------------------------------
22,707 RENTABLE SQUARE FEET NORTH
<PAGE> 44
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
- -------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 10 -
- --------------------------------------------
22,707 RENTABLE SQUARE FEET NORTH
<PAGE> 45
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
- -------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 1 -
- --------------------------------------------
536 RENTABLE SQUARE FEET NORTH
<PAGE> 46
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
-------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 1 -
--------------------------------------------
3,240 RENTABLE SQUARE FEET NORTH
<PAGE> 47
APPENDIX A
"PREMISES"
[Diagram of Premises]
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
-------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level LL1 -
--------------------------------------------
3,273 RENTABLE SQUARE FEET NORTH
<PAGE> 48
APPENDIX A
"PREMISES"
9th Floor Expansion Space II
5TH YEAR EXPANSION
11,354 RENTABLE SQ. FT.
[Diagram of Premises]
3RD YEAR EXPANSION
11,353 RENTABLE SQ. FT.
9th Floor Expansion Space I
200 NORTH LASALLE CHICAGO, IL 60601
TEACHERS INSURANCE AND ANNUNITY ASSOCIATION
-------------------------------------------
MIGLIN-BEITLER MANAGEMENT CORPORATION
(312) 346-1400
Level 9 -
--------------------------------------------
NORTH
<PAGE> 49
APPENDIX B
CLEANING SCHEDULE
Landlord shall furnish janitorial service as described below:
DAILY
-----
Sweep, dry mop (using treated mops), or vacuum all floor areas (moving
light furniture) of resilient wood or carpet, remove matter such as gum and tar
which has adhered to the floor.
Empty and damp wipe all ashtrays and waste baskets and remove all trash.
Dust all horizontal surfaces with treated dust cloth, including furniture,
files, equipment, blinds, and louvers that can be reached without a ladder.
Damp wipe all telephones, including dials and crevices.
Spot wash to remove smudges, marks and fingerprints from such areas as
walls, equipment, doors, partitions and light switches within reach.
Wash and disinfect water fountains and water coolers.
Damp mop all non-resilient floors such as concrete, terrazzo and ceramic
tile.
Empty all waste containers.
Dust and rub down elevator doors, walls, and metal work in elevator cabs.
TOILET ROOMS
------------
Clean mirrors, soap dispensers, shelves, wash basins, exposed plumbing,
dispenser and disposal container exteriors using detergent disinfectant and
water. Damp wipe all ledges, toilet stalls and doors, doors and walls.
Clean toilets and urinals with detergent disinfectant, beginning with
seats and working down. Pour one ounce of bowl cleaner into urinal after
cleaning and do not flush.
Furnish and refill all soap, toilet, sanitary napkin and towel dispensers.
Clean all baseboards.
Damp mop floors using detergent disinfectant.
WEEKLY
------
Wash all directory board, display, entry door and side light glass, as
necessary.
Spot clean carpet stains.
APPENDIX B
Page 1 of 2
<PAGE> 50
Spot wash interior partition glass and door glass to remove all smudge
marks and finger marks from doors, partitions, woodwork, window ledges and
window mullions.
MONTHLY
-------
Sweep stairwells and landings.
Wash all uncarpeted areas.
High dust all horizontal and vertical surfaces not reached in nightly
cleaning, such as pipes, light fixtures, door frames, picture frames and other
wall hangings.
QUARTERLY
---------
Vacuum all ceilings and wall air supply and exhaust diffusers or grills.
Wash all stairwell landings and treads.
Clean exterior windows of the Building, weather permitting.
Scrub, wax and buff all tile areas.
SEMI-ANNUALLY
-------------
Clean interior windows of the Building.
APPENDIX B
Page 2 of 2
<PAGE> 51
APPENDIX C
RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed near
the glass of any window, door, partition or wall which may, in Landlord's
judgment, appear unsightly from outside of the Project.
2. The Project directory shall be available to Tenant solely to display
names and their location in the Project, which display shall be as directed by
Landlord.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purposes
other than for ingress to and egress from the Premises. Tenant shall lend its
full cooperation to keep such areas free from all obstruction and in a clean
and sightly condition and shall move all supplies, furniture and equipment as
soon as received directly to the Premises and move all such items and waste
being taken from the Premises (other than waste customarily removed by
employees of the Building) directly to the shipping platform at or about the
time arranged for removal therefrom. The halls, passages, exits, entrances,
elevators, stairways, balconies and roof are not for the use of the general
public and Landlord shall, in all cases, retain the right to control and
prevent access thereto by all persons whose presence in the judgment of
Landlord, reasonably exercised, shall be prejudicial to the safety, character,
reputation and interests of the Project. Except as provided in Section 40 of
the Lease, neither Tenant nor any employee or invitee of Tenant shall go upon
the roof of the Project.
4. The toilet rooms, urinals, wash bowls and other apparatuses shall not
be used for any purposes other than that for which they were constructed, and
no foreign substance of any kind whatsoever shall be thrown therein, and to the
extent caused by Tenant or its employees or invitees, the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by Tenant.
5. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
6. Tenant shall not install or operate any refrigerating, heating or air
conditioning apparatus, or carry on any mechanical business without the prior
written consent of Landlord; use the Premises for housing, lodging or sleeping
purposes; or permit preparation or warming of food in the Premises (warming of
coffee and individual meals with employees and guests excepted). Tenant shall
not occupy or use the Premises or permit the Premises to be occupied or used
for any purpose, act or thing which is in violation of any public law,
ordinance or governmental regulation or which may be dangerous to persons or
property.
7. Tenant shall not bring upon, use or keep in the Premises or the Project
any kerosene, gasoline or inflammable or combustible fluid or material, or any
other articles deemed hazardous to persons or property, or use any method of
heating or air conditioning other than that supplied by Landlord.
8. Landlord shall have sole power to direct electricians as to where and
how telephone and other wires are to be introduced, provided Landlord's
exercise of such right is reasonable, does not create undue hardship to Tenant
and unreasonably interfere with the business operations of Tenant. No boring
or cutting for wires is to be allowed without the consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord.
9. Except as permitted in Section 11E of the Lease, Tenant shall not (i)
place any additional locks upon any doors, windows or transoms in or to the
Premises, or (ii) change existing locks at the Premises or the mechanism
thereof. Upon the termination of the Lease, Tenant shall deliver to Landlord
all keys and passes for offices, rooms, parking lot and toilet rooms which shall
have been furnished Tenant. In the event of the loss of keys so furnished,
Tenant shall pay Landlord therefor. Tenant shall not make, or cause to be made,
any such keys and shall order all such keys solely from Landlord
APPENDIX C
Page 1 of 3
<PAGE> 52
shall pay Landlord for any keys in addition to the two sets of keys
originally furnished by Landlord for each lock. Landlord's current rate for
replacement keys is $5.00 per key.
10. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be
received in the Project or carried up or down in the freight elevator, except
between such hours and in such freight elevator as shall be designated by
Landlord. The freight elevator currently runs between 6:00 a.m. and 3:00 p.m.
on business days, and during Tenant's construction of the Initial Improvements,
such schedule shall not change without Tenant's prior consent. Tenant shall
not take or permit to be taken in or out of other entrances of the Building, or
take or permit on other elevators, any item normally taken in or out through
the trucking concourse or service doors or in or on freight elevators.
12. Tenant shall cause all doors to the Premises to be closed and securely
locked and shall turn off all utilities, lights and machines before leaving the
Project at the end of the day.
13. Without the prior consent of Landlord, which will not be unreasonably
withheld or delayed, Tenant shall not use the name of the Project or any
picture of the Project in connection with, or in promoting or advertising the
business of, Tenant, except Tenant may use the address of the Project as the
address of its business.
14. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Premises' or the Project's heating and air
conditioning, and shall refrain from attempting to adjust any controls, other
than room thermostats installed for Tenant's use. Tenant shall keep corridor
doors closed.
15. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage, which may arise from a cause other than
Landlord's negligence, which includes keeping doors locked and other means of
entry to the Premises closed and secured.
16. Peddlers, solicitors and beggars shall be reported to the office of
the Project or as Landlord otherwise requests.
17. Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Project in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities.
18. No bicycle or other vehicle and no animals or pets shall be allowed in
the Premises, halls, freight docks, or any other parts of the Building except
that blind persons may be accompanied by "seeing eye" dogs. Tenant shall not
make or permit any noise, vibration or odor to emanate from the Premises, or do
anything therein tending to create, or maintain, a nuisance, or do any act
tending to injure the reputation of the Building.
19. Tenant acknowledges that Building security problems may occur which
may require the employment of extreme security measures in the day-to-day
operation of the Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly
scheduled time periods, as deemed advisable by Landlord and/or its agents, in
their sole discretion, require that persons entering or leaving the Project or
the Property identify themselves to watchmen or other employees designated by
Landlord, by registration, identification or otherwise.
APPENDIX C
Page 2 of 3
<PAGE> 53
(b) Tenant agrees that it and its employees will cooperate fully with
Project employees in the implementation of any and all security procedures.
(c) Such security measures shall be the sole responsibility of Landlord,
and Tenant shall have no liability for any action taken by Landlord in
connection therewith.
20. Except as provided in Section 42 of the Lease, Tenant shall not do or
permit the manufacture, sale, purchase, use or gift of any fermented,
intoxicating or alcoholic beverages without obtaining written consent of
Landlord.
21. Tenant shall not disturb the quiet enjoyment of any other tenant.
22. Tenant shall not provide any janitorial services or cleaning without
Landlord's written consent and then only subject to supervision of Landlord and
at Tenant's sole responsibility and by janitor or cleaning contractor or
employees at all times satisfactory to Landlord.
23. Except as prohibited by Section 11E of the Lease, Landlord may retain
a pass key to the Premises and be allowed admittance thereto at all times to
enable its representatives to examine the Premises from time to time.
24. No equipment, mechanical ventilators, awnings, special shades or other
forms of window covering shall be permitted either inside or outside the
windows of the Premises without the prior written consent of Landlord, and then
only at the expense and risk of Tenant, and they shall be of such shape, color,
material, quality, design and make as may be approved by Landlord.
25. Tenant shall not during the term of this Lease canvas or solicit other
tenants of the Building for any purpose.
26. Subject to Section 40 of the Lease, Tenant shall not install or
operate any phonograph, musical or sound- producing instrument or device, radio
receiver or transmitter, TV receiver or transmitter, or similar device in the
Building, nor install or operate any antenna, aerial, wires or other equipment
inside or outside the Building, nor operate any electrical device from which
may emanate electrical waves which may interfere with or impair radio or
television broadcasting or reception from or in the Building or elsewhere,
without in each instance the prior written approval of Landlord. The use
thereof, if permitted, shall be subject to control by Landlord to the end that
others shall not be disturbed.
27. Tenant shall promptly remove all rubbish and waste from the Premises.
28. Tenant shall not exhibit, sell or offer for sale, Rent or exchange in
the Premises or at the Project any article, thing or service, except those
ordinarily embraced within the use of the Premises specified in Section 6 of
this Lease, without the prior written consent of Landlord.
29. Tenant shall list all furniture, equipment and similar articles Tenant
desires to remove from the Premises or the Building and deliver a copy of such
list to Landlord and procure a removal permit from the Office of the Building
authorizing Building employees to permit such articles to be removed.
30. Tenant shall not overload any floors in the Premises or any public
corridors or elevators in the Building.
31. Intentionally Omitted.
32. Whenever Landlord's consent, approval or satisfaction is required
under these Rules, then unless otherwise stated, any such consent, approval or
satisfaction must be obtained in advance, such consent or approval may be
granted or withheld in Landlord's sole discretion, and Landlord's satisfaction
shall be determined in its sole judgment.
33. Tenant and its employees shall cooperate in all fire drills conducted
by Landlord in the Building.
APPENDIX C
Page 3 of 3
<PAGE> 54
APPENDIX D
TENANT IMPROVEMENT WORK AGREEMENT
1. INITIAL IMPROVEMENTS. Tenant shall be obligated to improve the
Premises, at its own cost subject to the Landlord's Contribution (hereinafter
defined), in accordance with plans and specifications approved by Landlord (the
"Plans") which approval shall not be unreasonably withheld (such improvements
are referred to herein as the "Initial Improvements"). Tenant shall furnish
the initial draft of the Plans to Landlord for its review and approval by
October 1, 1996. Landlord shall within one week after receipt of such initial
draft of the Plans either provide comments to such Plans or approve the same,
and Landlord's failure to respond within one week after receipt of such initial
draft shall be deemed approval. If Landlord provides Tenant with comments to
the initial draft of the Plans, Tenant shall provide revised Plans to Landlord
incorporating Landlord's comments within one week after receipt of Landlord's
comments. Landlord shall then either provide comments to such revised Plans or
approve such Plans, and Landlord's failure to respond within one week after
receipt of such revised Plans shall be deemed approval. The process described
in the previous sentence shall be repeated, if necessary, until the Plans have
been finally approved by Landlord. The Initial Improvements shall be performed
by any of Turner Construction Company, Pepper Construction, Inc., LaSalle
Construction and Walsh Construction Company, or any other contractor reasonably
acceptable to Landlord (the "Contractor"). Tenant hereby agrees that the Plans
for the Initial Improvements shall comply with all applicable statutes,
ordinances, regulations, laws and codes. Landlord's approval of any of the
Plans (or any modifications or changes thereto) shall not impose upon Landlord
or its agents or representatives any obligation with respect to the design of
the Initial Improvements or the compliance of such Initial Improvements and/or
the Plans with applicable laws, codes, ordinances and regulations; the
obligation with respect to the design of the Initial Improvements and its
compliance with applicable laws, codes, ordinances and regulations rests with
the Tenant.
All such Initial Improvements shall be insured under a construction
property insurance policy, insuring the replacement value from time to time of
such Initial Improvements, and comply with all applicable laws, ordinances and
regulations. All Initial Improvements shall be constructed in a good and
workmanlike manner, and only good grades of material shall be used. All
Initial Improvements shall be performed in such a fashion and by such means as
necessary to maintain a professional work environment in the areas surrounding
the space to be improved. Tenant shall only use labor that will work in peace
and harmony with other contractors and workers serving the Building in
constructing the Initial Improvements. Tenant shall avoid actions which
interfere with or delay the activities of other contractors serving the
Building and other tenants. Tenant shall permit Landlord to observe and
monitor all Initial Improvements.
2. ADDITIONAL IMPROVEMENTS. If Tenant shall require improvements
("Additional Improvements") to the Premises in addition to or substitution for
the Initial Improvements, Tenant shall deliver to Landlord for its approval,
which approval will not be unreasonably withheld or delayed, plans and
specifications for such Additional Improvements. Landlord shall within one
week after receipt of such initial draft of plans and specifications for the
Additional Improvements (the "AI Plans") either provide comments to such AI
Plans or approve the same, and Landlord's failure to respond within one week
after receipt of such initial draft shall be deemed approval. If Landlord
provides Tenant with comments to the initial draft of the AI Plans, Tenant
shall provide revised AI Plans to Landlord incorporating Landlord's comments
within one week after receipt of Landlord's comments. Landlord shall then
either provide comments to such revised AI Plans or approve such AI Plans, and
Landlord's failure to respond within one week after receipt of such revised AI
Plans shall be deemed approval. The process described in the previous sentence
shall be repeated, if necessary, until the AI Plans have been finally approved
by Landlord. Tenant shall pay for all preparations and revisions of the AI
Plans and the construction of all Additional Improvements.
3. LANDLORD'S CONTRIBUTION. Landlord shall contribute an amount not to
the product obtained by multiplying $34.00 by the number of rentable
square feet comprising the Premises (the "Landlord's Contribution") to be
applied toward the costs incurred by Tenant in connection with the Initial
Improvements, including, without limitation, the costs incurred by Tenant in
connection with any necessary demolition in the Premises and the preparation of
the Plans. If the costs incurred by Tenant in connection with the Initial
Improvements exceed the Landlord's Contribution, Tenant shall pay all of such
excess costs. If the total costs incurred by Tenant in connection with the
Initial Improvements is less than the Landlord's
APPENDIX D
Page 1 of 3
<PAGE> 55
Contribution then, at Tenant's option, the shortfall amount not to exceed $6
multiplied by the number of rentable square feet in the Premises may be used by
Tenant as either, or both of (i) a credit against the first installments of
Base Rent falling due during the Term of the Lease, or (ii) reimbursement to
Tenant for actual, verifiable costs incurred by Tenant in connection with
moving to the Premises. Upon written request of Tenant (not more frequently
than once each month), Landlord shall pay all or any portion of the Landlord's
Contribution to Tenant, within thirty (30) days after receipt of (i) invoices,
(ii) evidence satisfactory to Landlord that the work covered by such invoices
has been completed in a satisfactory manner, (iii) all necessary lien waivers
and sworn affidavits, (iv) marked copies of the originally approved Plans
showing all substantial changes made in constructing the Initial Improvements
during such period from the Plans as originally approved, and (v) such other
documentation as Landlord may reasonably require under the circumstances.
Tenant shall deliver as-built Plans to Landlord at the conclusion of Initial
Improvements. Tenant shall pay to Landlord a fee for supervising the
construction of the Initial Improvements, which fee shall be equal to the
out-of-pocket expenses incurred by Landlord in connection with such
supervision.
4. COMMENCEMENT DATE DELAY. The Commencement Date shall be delayed for
each day after September 5, 1996 that Landlord fails to make the Lower Level
Space and the Office Space available to Tenant for construction of, or
preparation for construction of, the Initial Improvements, except to the extent
that the delay shall be caused by any act or omission by Tenant, its agents,
contractors or persons employed by any of such persons.
5. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord shall permit
Tenant and its agents, and the Contractor, to enter the Lower Level Space and
the Office Space beginning on the date Landlord executes this Lease, at no cost
to Tenant (unless Tenant begins to operate its business from the Premises prior
to the Commencement Date in which event the terms of Section 3B of the Lease
shall apply), to perform the Initial Improvements and prepare the Premises for
Tenant's use and occupancy, including testing and installation of Tenant's
equipment. Any such permission shall constitute a license only, conditioned
upon Tenant's:
(a) working in harmony with Landlord and Landlord's agents, contractors,
workmen, mechanics and suppliers and with other tenants and occupants of the
Building;
(b) obtaining in advance Landlord's approval of the contractors proposed
to be used by Tenant (except the Contractor and subcontractors who will not be
performing mechanical or electrical work) and depositing with Landlord in
advance of any work the Contractor's affidavit for the proposed work and as
necessary, from time to time, waivers of lien from the Contractor and all
subcontractors and suppliers of material; and
(c) furnishing Landlord with the insurance required of Tenant pursuant to
Section 8 of the Lease, and causing all other parties entering the Project to
perform the Initial Improvements to provide Landlord with the same types, and
amounts, of coverages required of the Tenant in Section 8 of the Lease.
Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's property or installations in the Premises
prior to the Commencement Date. Tenant shall protect, defend, indemnify and
save harmless Landlord from all liabilities, costs, damages, fees and expenses
arising out of the activities of Tenant or its agents, the Contractor, other
contractors, suppliers or workmen in the Premises or the Building. Any entry
and occupation permitted under this Appendix D shall be governed by Section 5
and all other terms of the Lease. Landlord shall make the freight elevator
available to Tenant during the hours set forth in Paragraph 11 of Appendix C
above during construction of the Initial Improvements so as to enable Tenant to
continuously perform such construction in the space.
6. MISCELLANEOUS.
(a) Terms used in this Appendix D shall have the meanings assigned to them
in the Lease. The terms of this Appendix D are subject to the terms of the
Lease.
APPENDIX D
Page 2 of 3
<PAGE> 56
(b) Notwithstanding anything contained in the Lease to the contrary,
Landlord shall pay for all utilities to the Premises for the time period
beginning on the date Landlord delivers possession of the Premises to Tenant
and ending on the earlier of (i) the Commencement Date, or (ii) the date Tenant
begins to do business from the Premises.
APPENDIX D
Page 3 of 3
<PAGE> 57
APPENDIX E
A. Base Building Components:
Landlord and Tenant have performed a joint walk-through of the Premises
through their respective agents and both parties mutually agreed upon (i) a
"Punchlist" of items which both parties are obligated to perform pursuant
to Paragraph B of this Appendix E below, and (ii) base building components
(the "Base Building Components") which are listed in this Paragraph A
below. Landlord does not warrant or represent as to the condition of such
Base Building Components and Tenant acknowledges that it has been given an
opportunity to inspect the Base Building Components and is accepting them
in their "as-is" condition. The following are the Base Building
Components:
1. The structural steel and concrete erection of the Building is
completed;
2. The Building is enclosed and waterproofed;
3. All utility and service lines and equipment relating to the
Building have been brought to the floors on which the Premises
are located and the same are in good operating condition; main
distribution of primary HVAC and main distribution of sprinkler system
have been installed, building standard sprinklers are operational,
main electric disconnect is in place, and HVAC loop is connected to
main risers or to dedicated floor fan system; electricity and
telephone main risers are installed and stubbed to the floor;
4. The HVAC system, to the floors on which the Premises are
located, is fully operational and can supply one (1) CFM per square
foot per floor;
5. The toilet rooms on the floor on which the Premises are
located are complete, including electrical outlets and building
standard finish;
6. The concrete slab floors have been leveled, as needed, to
within one quarter (1/4) inch per 10 foot diameter (non-cumulative)
in all areas required to implement Tenant's Plans, provided that any
conditions existing prior to Landlord's delivery of the Office Space
to Tenant which do not conform to this standard, shall not be
Landlord's responsibility;
7. All perimeter walls are drywalled, taped and sanded;
8. The ground floor lobby and ground floor elevator lobby are
complete;
9. Base building fire stairs are installed and may be accessed
with card access system for inter-floor passage, at Tenant's cost.
Tenant shall have access to the fire stairs between floors 10
through 15 for internal use;
10. Base building fire protection alarm system completed with
common area annunciators is installed and operational; a base
building safety voice annunciator system is installed complete with
common area speakers;
11. Building standard 1" horizontal blinds are installed;
12. Cold water supply waste and vent piping are available at two
locations on each floor;
13. Condenser water riser valve access is presently provided at
Floors 15 and 12. Condenser water capacity is 15 tons per floor,
which capacity may be aggregated and applied to less than all floors
of the Premises. Tenant's use of condenser water shall be free of
charge up to a maximum of 15 tons per floor, as may be aggregated;
APPENDIX E
Page 1 of 2
<PAGE> 58
14. Present electrical power per floor equates to at least 400
Amp, 3 phase service, 1200 Amps at 120 Volt, 144,000 Watts or 6.545
Watts per square foot; and
15. Floor load limits of 50 PSF live load, plus 20 PSF partition
load is typical, and 80 PSF live load, plus 20 PSF partition load is
typical in the floor areas located within 15' of the elevator core.
B. Punchlist of Base Building Components:
1. Landlord shall seal cores in the communication closet in the
Office Space between floors 9 and 10, and floors 15 and 16.
2. Landlord shall make available to Tenant (a) all existing
stock of linear diffusers and radiant heat panels on the fourteenth
floor, (b) additional building stock radiant heat panels, and (c)
the stock on the fourteenth floor which shall be inventoried by the
building engineer, but such stock on the fourteenth floor shall only
be available to Tenant until completion of the Initial Improvements.
3. Landlord shall provide life safety risers to accompany the
strobes which Tenant shall install, at Tenant's sole cost, as part
of an ADA-compliant life safety system.
4. Tenant may, at its sole cost, interface its security system
with the Building security system to allow for single card access.
Upon completion of these items in this Paragraph B which are
Landlord's responsibility, such items shall be deemed Base Building
Components.
APPENDIX E
Page 2 of 2
<PAGE> 59
APPENDIX F
MORTGAGES CURRENTLY AFFECTING THE PROJECT
None.
APPENDIX F
Page 1 of 1
<PAGE> 1
EXHIBIT 11
THE FLORSHEIM SHOE COMPANY
STATEMENT RE COMPUTATION OF NET EARNINGS PER COMMON SHARE
<TABLE>
<CAPTION>
THREE MONTHS THREE MONTHS
ENDED ENDED
SEPTEMBER 30, 1995 SEPTEMBER 28, 1996
------------------ ------------------
<S> <C> <C>
Weighted average common shares during the period........ 8,346,051 8,346,051
Common shares issuable on exercise of stock options..... --(1) 44,160(2)
-------- --------
Weighted average common and common equivalent shares
outstanding........................................... 8,346,051 8,390,211
======== ========
</TABLE>
(1) Common stock options were not included since the exercise of which would
have had an antidilutive effect on the net loss per share.
(2) Includes common stock options, the exercise of which would result in
dilution of net earnings per share. If the average common stock price was
higher than the common stock option exercise price during the period,
common stock options were considered as exercised and the proceeds assumed
to be used to purchase common stock at the average common stock market
price.
<PAGE> 2
EXHIBIT 11
THE FLORSHEIM SHOE COMPANY
STATEMENT RE COMPUTATION OF NET EARNINGS PER COMMON SHARE
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, 1995 SEPTEMBER 28, 1996
------------------ ------------------
<S> <C> <C>
Weighted average common shares during the period............ 8,346,051 8,346,051
Common shares issuable on exercise of stock options......... --(1) --(1)
--------- ---------
Weighted average common and common equivalent shares
outstanding............................................... 8,346,051 8,346,051
========= =========
</TABLE>
(1) Common stock options were not included since the exercise of which would
have had an antidilutive effect on the net loss per share.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-30-1995
<PERIOD-START> JUN-30-1996
<PERIOD-END> SEP-28-1996
<CASH> 14,052
<SECURITIES> 0
<RECEIVABLES> 33,483
<ALLOWANCES> 2,475
<INVENTORY> 67,797
<CURRENT-ASSETS> 130,715
<PP&E> 35,291
<DEPRECIATION> 15,625
<TOTAL-ASSETS> 173,907
<CURRENT-LIABILITIES> 25,995
<BONDS> 69,450
<COMMON> 8,436
0
0
<OTHER-SE> 46,838
<TOTAL-LIABILITY-AND-EQUITY> 173,907
<SALES> 60,107
<TOTAL-REVENUES> 60,107
<CGS> 31,965
<TOTAL-COSTS> 25,650
<OTHER-EXPENSES> (13)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,361
<INCOME-PRETAX> 144
<INCOME-TAX> 52
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 92
<EPS-PRIMARY> 0.01
<EPS-DILUTED> 0
</TABLE>
