UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED MARCH 31, 1999
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ......... TO ..........
COMMISSION FILE NUMBER: 0-29126
JENNA LANE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 22-3351399
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1407 Broadway, Suite 2400 10018
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 704-0002
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: COMMON STOCK, $.01
PAR VALUE AND CLASS A COMMON STOCK PURCHASE WARRANTS
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes...X.... No.......
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (ss.229.405 of this chapter) is not contained herein, and will
not be contained, to the best of the registrant's knowledge, in definitive proxy
or information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [ X ]
Aggregate market value of voting and non-voting common equity held by
non-affiliates as of June 23, 1999: $5,171,832.10 (includes all common equity,
whether or not registered under the Securities Act of 1933, as amended)
(APPLICABLE ONLY TO CORPORATE REGISTRANTS)
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date: As of June 18, 1999 the number
of shares of common stock outstanding was 4,003,279 shares.
DOCUMENTS INCORPORATED BY REFERENCE.
Portions of the Registrant's definitive proxy statement for the 1999 Annual
Meeting, which will be filed within 120 days of March 31, 1999, are incorporated
by reference into Part III.
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PART I
ITEM 1. BUSINESS.
OVERVIEW
The Company was formed in February 1995 and designs, manufactures and
markets high quality, popularly priced "junior", "missy", and large size basic
sportswear, basic fashion sportswear, and fashion knit and woven sportswear and
other apparel for women and children. The Company was founded by individuals
with extensive experience in apparel manufacturing, operations, sales and
merchandising, and current management includes sales group and other leaders
with similar backgrounds and experience.
The Company operates through eight sales groups: Jenna Lane ("Jenna
Lane"), JLNY ("JLNY"), Smart Objects, T.L.C. for Kidz ("TLC"), Impatiens, Mail
Order, Bongo and U.S. Polo Association ("USPA"). Jenna Lane is primarily
involved in the design, manufacture and sale of domestically produced cut and
sewn, junior, missy and large size sportswear for women. JLNY sells foreign
produced cut and sewn, junior, missy, and large size sportswear for women. Smart
Objects manufactures junior fashion sweaters and knits in the moderate price
range. TLC markets children's apparel. Impatiens is a dress manufacturer. The
Company's mail order sales group sells junior, missy, large size and children's
knits and wovens in the mail order channel of distribution. The Bongo sales
group holds an exclusive license from the owner of the Bongo trademarks to
produce products in the large size women's category. The Company is winding down
its USPA sales group's activities (the group had been producing missy and large
size active wear), resulting from a dispute between the Company, the licensor
and certain other parties. See Item 3, "Legal Proceedings." The USPA and Bongo
sales groups are operated through wholly-owned subsidiaries of the Company,
Jenna Lane Polo Association, Ltd., and Jenna Lane Licensing I, Inc.,
respectively.
The Jenna Lane sales group dominates the Company's revenues to a large
extent, producing primarily basic sportswear which is domestically produced
(although Jenna Lane also produces basic fashion and fashion sportswear). In the
production of basic sportswear, the Company attempts to substantially control or
own all aspects of its production capability, known within the industry as
"vertical integration." The Company believes that this vertical integration
positions the Company among the few apparel manufacturers in its market with the
ability to control and manage the entire manufacturing process from the
conversion of yarn into fabric to the completion of finished apparel. The
Company believes it is able to realize significant cost savings through its
retention of responsibility for the manufacturing of its own fabric (although
not actually manufacturing itself). As a result, the Company believes it can
sell high quality merchandise to price sensitive discounters and mass merchants
at prices competitive to those of imported goods.
Management believes that vertical integration in its domestic
manufacture of sportswear, primarily for its Jenna Lane and mail order sales
groups, allows the Company to deliver good quality competitively priced
merchandise to customers significantly faster than the delivery time on goods
shipped from overseas. Because of the Company's ability to produce goods more
quickly than those of its competitors who import products, the Company's retail
customers can conserve capital by purchasing less initial inventory, reduce
markdowns by holding smaller quantities of non-moving merchandise, and increase
sales by rapidly restocking fast-selling items. Management believes that the
Company's ability to deliver good quality, competitively priced merchandise in a
short time frame has allowed it to obtain as customers many of the nation's
leading discount
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retail outlets, although no assurance can be given that these relationships will
continue or be expanded.
In its sales of basic fashion sportswear for a number of its sales
groups, the Company is able to manufacture high quality goods at a moderate
price point by using its domestic vertically integrated facilities in
conjunction with processes more typical to the fashion industry. In producing
its fashion sportswear, the Company follows more traditional manufacturing
processes utilized in the apparel industry, namely the purchasing of fabric from
outside vendors.
The fashion and basic fashion sportswear product lines generate a higher
gross profit margin than basic sportswear due to the differentiation of product
and reduced competition. In its fashion and basic fashion sportswear production,
the Company loses its competitive advantage of converting its own fabrics.
Management believes, however, that its long standing relationships with buyers
and management of its retail customers and its overall merchandising and design
skills allow the Company to successfully compete in the fashion and basic
fashion sportswear business. There can, however, be no assurance of the
continuation of such success.
Domestic production represents substantially all the activity within the
Smart Objects, Impatiens and Mail Order sales groups and approximately half of
the production activity within USPA and TLC. The balance of the Company's
production, including 100% of the JLNY and Bongo sales groups, represents
imported goods. While profit margins generally are higher on imported goods,
delivery and lead times and risk assumed by the Company are greater.
The Company attempts to maximize its competitive advantage through its
market focus, product design, and merchandise. The Company historically has
targeted the major national, regional and specialty chains whose volume demands
attract them to manufacturers who can produce quality merchandise in high
volumes at low cost within specified delivery schedules. As the Company's
product offerings have expanded into imported goods and higher price point
items, the Company has grown its intended customer base to include retailers
more focused on quality and reliability than high volume or rapid delivery.
The Company maintains a strong focus on popularly priced clothing, a
segment of the apparel industry which management believes is experiencing faster
growth than the industry as a whole. The Company believes, although it has no
quantitative evidence thereof, that demographic trends have shifted consumer
spending habits and apparel expenses have become a smaller proportion of
personal expenditures for the "baby boom" population born between 1945 and 1964.
Management believes that these consumers are required to shift more of their
disposable income to the payment of mortgages, children's education and savings.
As consumers have less money to spend on clothing, management believes they are
shifting their apparel spending to discounters and off-price retailers. They are
also purchasing more basics that can be worn for more than one season and have
lower risk of becoming out of style in the year following purchase.
At the same time, the currently strong U.S. economy has increased the
interest in basic fashion products, which are higher priced but maintain some of
the multi-season utility of basic sportswear. In addition, the greater
disposable income resulting from the strong economy has enhanced the Company's
success in marketing fashion sportswear through its various sales groups.
A major focus of the Company's merchandising efforts involves the sale
of fashion, basic fashion and basic
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sportswear to large size women's departments. Management believes that this
market will grow due to the aging of the population and the tendency of older
people to be overweight, although there can be no assurance of this. The Company
has also sought to diversify its customer base through many product offerings by
its sales groups focused on junior, missy and children's size apparel. The
Company's sales of large size products, however, continue to represent a
significant portion of the Company's volume.
In March 1997, the Company completed its initial public offering of
investment units comprising shares of Common Stock and Class A Common Stock
Purchase Warrants ("Warrants"). Each Warrant entitles the holder to purchase one
share of Common Stock at an exercise price currently equal to $6.36, subject to
adjustment, at any time until March 19, 2000. The Company's Common Stock and
Warrants are listed on the Nasdaq National Market System ("Nasdaq") under the
symbols JLNY and JLNYW, respectively. See "Item 5.
Market for Registrant's Common Equity and Related Stockholder Matters."
PRODUCT LINE
The Company specializes in the design, manufacture and marketing of high
quality, popularly priced junior, missy and large size sportswear and other
apparel for women and children. The Company's products are sold at popular and
moderate price points, typically ranging from $9 to $40 at retail. A large
portion of the Company's sales are from merchandise sold under the label of the
retailer (known as "private label"). The remainder are sold under the Company's
own labels, which currently include Smart Objects (TM), United States Polo
Association (R), Stressed Out (TM), Jenna Lane (TM), Jenna Lane (TM), Eric
Charles (TM) and Jenna Lane Woman (TM). The Company's product line consists of
many different styles that are changed twice each year in response to the two
major selling seasons in the apparel industry - fall/back to school and spring.
Adjustments and changes are made continuously to the line in response to
customer information. Many of these styles are similar but customized to meet
the design requests of the retailer or to provide the retailer with
merchandising which its competitor is not selling.
As indicated above, the Company's products are different for each sales
group, although some sales groups, such as mail order, sell products
manufactured by other sales groups. Across the Company's sales groups, products
vary from basic, fashion basic and fashion sportswear. Basic apparel is
significantly less risky than basic fashion and fashion apparel, primarily
because of its longer product life cycle, but contains a lower gross profit
margin. Management attempts to blend the relative risk levels with the
profitability of these areas.
The Company believes it has established a strong presence in the large
size women's market. In the large size women's market, the Company's various
sales groups produce a variety of pants, shorts, skirts, blouses, t-shirts,
sweaters, coordinates, and dresses in knitted and woven fabrics consisting
predominantly of lycra, acrylic, poly cotton, and stretch wovens. Bottoms and
tops predominate this category, with bottoms generally producing greater sales
than tops.
SALES GROUPS
The Company is organized into eight sales groups, described in more
detail below. Each sales group is decentralized with regard to sales. Production
costs and operating costs associated with each sales group generally are not the
responsibility of the sales group manager and operating expenses are not
allocated by sales
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group. Management of the sales groups are generally compensated based on a
commission tied to net sales and profit margins, although some are compensated
in part based upon the overall profitability of the sales group. The Company
believes that this structure enables sales group management to concentrate on
sales and merchandising.
The Company sells a majority of its products directly through its own
showroom at 1407 Broadway in Manhattan, New York. The Company currently employs
eight individuals in sales. Most salespeople generally receive a monthly draw
against commission, with the commission being determined by the gross profit
margin on an order by order basis.
Jenna Lane. This sales group is responsible for selling domestic
merchandise to customers in the junior, missy and large size markets.
Merchandising in this sales group consists primarily of bottoms, tops and
coordinates. As mentioned previously, bottoms containing lycra are a strong
product in this category. In the large size market, products include junior
inspired fabrications, silhouettes manufactured to large size specifications and
more traditional large size products. All products are produced domestically.
JLNY. As mentioned above, junior, missy, and large size products are
imported through this sales group. The bulk of the merchandising in this group
includes denim and denim related sportswear. Price points for both denim and
woven products in this sales group are slightly higher than those which are
domestically produced, with similar gross margins to domestic products.
Management believes that reduced trade restrictions, increased competition in
the domestic market and other factors have enhanced the Company's ability to
substantially increase its activities in the import area, as a result of which a
number of the Company's sales groups have benefitted through the use of
importing. It is the Company's goal to make the use of imports the dominant
focus of the Company's production efforts.
Mail Order. This sales group is responsible for selling merchandise to
companies who sell through direct mail catalogs. The product line includes
wovens, knits and children's apparel in both basic and fashion sportswear in the
junior, missy and large size categories, and tends to concentrate on somewhat
higher price points than the Company's other products.
Smart Objects. In 1998, the Company established the Smart Objects sales
group to manufacture and sell moderately priced women's sweaters to department
stores and better specialty chains. This has been the Company's first effort
targeted at these retailers, and while sales have been slow to grow, management
hopes to expand sales in the other sales groups as a result of its marketing
efforts to these customers. The Company markets the sweaters primarily under the
Smart Objects label.
United States Polo Association. In 1998, a wholly-owned subsidiary of
the Company (referred to in this paragraph as the "Company"), entered into a
license agreement with the master licensee of the United States Polo
Association. The license covers apparel of various types. The license includes
the use of the name United States Polo Association and its logos. The license
agreement continues until July 31, 2001 but the Company has an option to extend
the license for three additional years thereafter. Under the license agreement,
the Company pays a royalty of 5% of net sales generated but pays a guaranteed
minimum royalty of $150,000 in the first year, $200,000 in the second year, and
$250,000 in the third year and in any year thereafter. The Company also is
obligated to achieve minimum annual net sales of $3.0 million in the first year,
$4.0 million in the second year
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and $5.0 million in the third year and in any year thereafter. This sales group
began shipping its products in September 1998. The Company has not made certain
payments under the agreement because of its belief that the licensor has
breached the license agreement, and has brought an action against the licensor
and other parties. See Item 3, "Legal Proceedings."
TLC. In May 1998 the Company established its children's sales group. On
June 19, 1998, a wholly-owned subsidiary of the Company purchased substantially
all of the assets of T.L.C. for Girls, Inc. ("TLC"), a debtor-in- possession
under Chapter 11 of the United States Bankruptcy Code and a manufacturer of
children's wear, for an aggregate purchase price of $350,000. The Company also
had loaned TLC approximately $200,000 which has been capitalized as part of the
purchase price. In addition, for several months prior to the acquisition, the
Company served as TLC's exclusive supplier of goods, assisting TLC in producing
an order file approximating $4 million. The children's clothing has continued to
be manufactured primarily under the "TLC" label. Types of apparel marketed by
this sales group includes children's sportswear such as tops, bottoms, sets and
dresses.
BONGO. In July 1998, a wholly-owned subsidiary of the Company entered
into a license agreement with Michael Caruso & Co., the owner of the "BONGO"
trademarks. The license grants the Company the exclusive right to manufacture
large size women's sportswear of various types. The license includes the use of
the name BONGO and its logos. The license agreement, which was recently amended
to extend its term, continues until June 30, 2002, and the Company has an option
to extend the license for an additional three years thereafter. Under the
license agreement, the Company pays a royalty of 5% of net sales generated, with
a guaranteed minimum royalty of $250,000, $425,000, $650,000 in the initial
three year term (the first year of which extends from July 1998 until June 30,
2000), and sums ranging from $900,000 to $1,400,000 during the three years of
the extended term of the agreement. The Company also is obligated to achieve
minimum annual net sales of $5,000,000, $8,500,000, $13,000,000 in the initial
three year term, and sums ranging from $18,000,000 to $28,000,000 during the
extended term of the agreement. The Company has been merchandising large size
women's clothing since entering into this license arrangement.
Impatiens. In August 1998, the Company established its dress division,
doing business under the name "Impatiens." The Company believes that the dress
market, which it had not previously pursued, represents an opportunity to
broaden the base of products offered, as well as to utilize customer
relationships to sell additional products to the Company's existing customer
base, while entering into new customer relationships that were not interested in
doing business with the Company prior to its entry into the dress market. The
sales group's products consist primarily of casual career and enlightened
contemporary dressing for missy, petite, large and junior sizes.
DESIGN DEVELOPMENT
New designs are created by an in-house staff which as of the date of
this Annual Report consists of eight designers. Management believes there are
many synergies in the design functions and that designs created for one sales
group are frequently modified for use by other sales groups. The Company
endeavors to combine creativity, knowledge of the marketplace and input from its
retail customers to develop designs that incorporate established fashion trends
and basic apparel.
In order to facilitate its design activities and production, the Company
uses a CAD/CAM (computer aided
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design/computer aided manufacturing) system. This system speeds the product
development cycle during the design phases as well as initial pattern making and
the creation of samples. In addition, customer presentations and maintenance of
historical data were significantly improved with the addition of the new
computer system.
MANUFACTURING
In general, in basic sportswear merchandising, the Company maintains
responsibility for the entire manufacturing process from conversion of yarn to
shipment of finished goods, although it contracts out most of this work. The
Company has established ties with approximately eight contractors, for whom the
Company represents much of their business, to provide all of its cutting and
sewing needs, although no assurance can be made that these relationships will
continue at all or in a form and structure satisfactory to the Company. These
relationships allow the Company to exercise an element of control over the
contractor's production schedules and quality of the production process without
being required to manage its own large labor force or undertake the financial
obligations for capital acquisitions and equipment.
The manufacturing process begins with the purchase of yarn. Poly cotton,
acrylic and lycra are the three major yarns which are purchased by the Company.
The Company generally purchases this yarn on a "spot" (or immediate) basis.
During times of price fluctuations, the Company attempts to protect against
these fluctuations by purchasing longer-term contracts, if possible.
In its domestic manufacturing, the Company causes the yarn to be
delivered to the contracted knitter, which then knits fabric in accordance with
Company specifications. This process of conversion of knit to fabric generally
takes approximately one week. The majority of fabric produced are greige
fabrics, which are fabrics in their natural color. The Company maintains an
inventory of greige fabric, permitting it to respond quickly to orders or
unforeseen shortages. By maintaining its inventory primarily in greige goods
rather than dyed goods, the fashion risk inherent in fabric color is reduced.
The Company then sends the fabric to dyers and finishers primarily in
the Northeast United States, in particular New York, New Jersey and
Pennsylvania. After the fabric is completed, it is then shipped to another
contractor, which will then cut and sew garments according to Company
specifications.
As indicated above, the Company has established a relationship with
approximately eight outside contractors to provide a majority of its domestic
cut and sewing needs. Although production is done outside the Company, these
contractors rely on the Company for a great deal of their revenue. As a result
of issues concerning contractors' compliance with certain legal requirements
(see "Quality Control; Contractor Compliance," below), the Company has sought to
utilize fewer, more reliable contractors. While this causes the Company to be
somewhat more dependent on these contractors, the Company prefers this
dependence to an inability to monitor a larger number of contractors' compliance
with legal requirements and the Company's product specifications. The Company
currently has no contractual arrangement with these contractors other than those
with respect to individual orders and with respect to legal compliance issues.
The Company has loaned an aggregate of $292,927 to its contractors during the
past two years, of which $163,149 has been repaid with interest (including a
loan for $36,000 that was written off). These loans generally are secured by
certain assets of the borrower. The Company does not intend to loan further
funds to contractors, since it believes that it must remain independent of the
operations and business conduct of its contractors.
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After completion of cutting and sewing, the completed goods are sent to
the Company's warehouse in New Jersey for distribution and shipping or will be
shipped directly to the customer from the contractor.
Management believes that the industry standard in basic sportswear
merchandising to produce a finished product from the time the fabric is ordered
is six to eight weeks. By employing the processes described above, the Company
generally has been able to complete the entire manufacturing process from
delivery of yarn to completion of finished goods in approximately four weeks,
although no assurance can be given that such performance will continue, and many
factors outside the Company's control can affect this response time.
In the manufacture of basic fashion and fashion sportswear, the Company
and its captive contractors noted above are involved in the cutting and sewing
process, but the Company does not purchase the yarn or knit, dye or finish it.
This work is completed prior to the Company's contractor's commencement of
involvement in the process.
SHIPPING
The Company ships a small portion of its merchandise directly from the
contractor to customers. In addition, in January 1999, the Company leased
approximately 72,000 square feet of warehouse and office space in Seacaucus, New
Jersey. Most of the Company's merchandise is shipped from this warehouse.
Management utilizes public warehousing to a limited extent during peak periods
of shipping.
QUALITY CONTROL; CONTRACTOR COMPLIANCE
A vital concern to management is product quality and quality control.
Strict quality control standards are required in order to maintain and build
relationships with key customers and minimize product returns. Adherence to
these strict standards is even more important to national mass merchants such as
Kmart (a current customer of the Company). The Company carefully monitors the
output of its contractors to insure they produce the highest quality
merchandise. All contractors are visited by employees of the Company's quality
control team, which includes its senior executives, and are supplemented by
contractor paid in-house teams.
The Company has encountered certain difficulties regarding certain of
its contractors' employees. The Company recently settled an action brought
against it by employees of one of its contractors, and as a result, the Company
has entered into a comprehensive contractor compliance program with respect to
ensuring that contractors' employees are legally permitted to work in the United
States and that all applicable age, wage and hour laws are strictly complied
with. Each contractor is subject to surprise visits by the Company's full-time
employee whose sole job is focused on contractor compliance. Each contractor
also is required to sign a detailed agreement with the Company pursuant to which
it covenants to comply with all such applicable laws.
INVENTORY
In the fiscal year ended March 31, 1999, the Company turned its
inventory six times, compared to seven times for the 1998 fiscal year. As the
Company grows and matures and further increases its importing activities, the
turn rate is likely to continue to decrease. The Company endeavors to offset
this negative aspect of importing by continually increasing the percent of
merchandise that is sold prior to its manufacturing. Currently a majority
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of the merchandise is pre-sold. There can be no assurance of the Company's
ability to pre-sell its merchandise.
ORDERING AND DISTRIBUTION
The Company has computerized its order entry and has fully integrated
order entry, shipping, accounts payable and accounts receivable through use of
computer software. Senior management generally reviews all orders with respect
to price, merchandise delivery dates and suitability for the customer. For the
foreseeable future, the Company has determined that virtually no merchandise
will be produced for stock domestically and all domestic manufacturing will take
place in response to customer orders. As mentioned above, a portion of the
Company's imported goods are produced prior to receipt of a customer order,
primarily resulting from the longer lead times required for manufacturing and
delivery as compared with domestically produced goods. Customers are invoiced at
the time of shipment. Generally most customers have made payment within
approximately 60 - 75 days, although no assurance can be given that this trend
will continue.
ELECTRONIC COMMERCE
Beginning on April 15, 1999 the Company formed an alliance with ModaCAD,
Inc., ("ModaCad") to build an online retail store under ModaCad's
"styleclick.com" online mall, and through a web site exclusive to the Company
under the domain name "JENNALANE.COM". Company products will be offered by sales
group on the "styleclick" site, initially including Jenna Lane, JLNY, Bongo and
Smart Objects. The "jennalane.com" web site will divide products by category,
and will also include an "Investor Relations" section which will provide
information on daily stock quotes and Company information. This will also allow
for the public to post messages about the Company, and a place for management to
respond to the messages. The Company expects (although no assurance can be
given) to have the web site fully operational in July or August 1999, and is
hopeful that the remainder of the Company's sales groups will include some of
their products on these sites before the 1999 holiday season.
In exchange for their design, maintenance and hosting of the various
sites, the Company pays to ModaCad 30% of the gross revenues resulting from the
online sales. ModaCad also will implement all product fulfillment, customer
service and shipping of products sold online. The Company also has paid a
start-up fee and pays a maintenance fee to continue the sites operational.
OPERATIONS
The Company maintains corporate offices and its design room at its
warehouse facility in Seacaucus, New Jersey as well as at 1407 Broadway in
Manhattan, where it also maintains its showroom and principal executive offices.
In February 1999, the Company entered into a lease of the entire twenty-fourth
floor of 1407 Broadway, and the Company has already moved most of its showrooms
into this single facility. The Company will maintain its Impatiens showroom at
1410 Broadway, and it also pays for a portion of space in the Bongo showroom in
Manhattan. The Company is hopeful that its other showroom leases will be
assigned, sublet or returned to the landlords, but there can be no assurance of
this. See "Item 2-Description of Properties."
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CUSTOMER BASE
The Company attempts to conduct business only with those customers it
believes to be the most attractive in the market. These include current national
mass merchant customers such as Kmart; regional discounters such as Ames,
Shopko, Hills, and Pamida, national specialty chains such as Cato Stores, Deb
Shops, Petrie, Ashley Stewart, Wet Seal, Miller's Outpost, and Charming Shoppes,
department stores such as Federated Stores, and Steinmart, and other customers
including the Army/Air Force Exchange, Brylane and Lerner's. Management has
extensive long standing personal relationships with most of these accounts,
although no assurance can be given that any of these will remain customers of
the Company. During the fiscal year ended March 31, 1999, Kmart represented
approximately 23% of the Company's sales and Charming Shoppes represented
approximately 12% of the Company's sales.
COMPETITION
The apparel business is intensely competitive and consists of numerous
manufacturers, importers and distributors, none of which accounts for a
significant percentage of total industry sales, but many of which are
significantly larger and have substantially greater resources than the Company.
The Company competes with distributors that import apparel from abroad, domestic
companies with established foreign manufacturing relationships and companies
which produce apparel domestically.
The Company believes its ability to succeed depends in substantial part
on its ability to anticipate, gauge and respond to changing consumer demands and
fashion trends in a timely manner, as well as to operate within significant
production and delivery constraints. The Company has attempted and will continue
to attempt to minimize the risk of changing fashion trends and product
acceptance by producing a wide selection of apparel during a particular selling
season and by closely monitoring retail sales of its products. However, if the
Company misjudges the market for a number of products or product groups, it may
be faced with a significant amount of unsold finished goods inventory which
could have a material adverse effect on the Company's operations.
BACKLOG; SEASONALITY
As of June 1, 1999, the Company had unfilled orders of approximately
$19.5 million, compared to approximately $16.1 million of such orders at the
comparable date in 1998. These amounts include both confirmed orders and
unconfirmed orders, which the Company believes, based on industry practice and
its past experience, will be confirmed, and are therefore considered to be firm.
Shipment of Spring orders normally commences in the early part of January with
the major portion of Spring merchandise shipped in March and April. Shipment of
Back-to-School/Fall orders normally commences in late June with the major
portion of Fall merchandise shipped in August, September and October. The amount
of unfilled orders at a particular time is affected by a number of factors,
including the scheduling of the manufacture and shipping of the product which,
in some instances, depends on the desires of the customer. Accordingly, a
comparison of unfilled orders from period to period is not necessarily
meaningful and may not be indicative of eventual actual shipments.
The Company's business is somewhat seasonal, but management believes
that it is less so than many other sportswear companies, primarily because of
the Company's partial focus on basic sportswear, which is less seasonal than
fashion apparel. In addition, the Company believes its product mix is diverse
and varied enough so that some of its products are popular at any time of year.
The Company does, however, generally experience its strongest sales during its
fourth quarter, from January 1 to March 31. The Company does not believe this
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variation has had a material adverse impact on its cash flow or operations,
although there can be no assurance that this will not be the case in the future.
FACTORING OF ACCOUNTS RECEIVABLE
Generally, the Company's accounts receivable are paid within 60-75 days
from invoice, which management believes is within industry standards. The
Company has a Factoring Agreement with Republic Business Credit Corp.
("Republic"), pursuant to which the Company receives advances against factored
accounts receivable with interest at 1.0% under prime rate. Advances, which are
at the discretion of Republic, generally are equal to 80% of eligible
receivables. Republic also has provided the Company with financing for import
letters of credit. Republic Bank participates in this financing arrangement. The
Company has generally utilized the factoring arrangement to the maximum extent
permitted by Republic. As the Company has completed further acquisitions and
licensing arrangements, its dependence on its arrangement with Republic has
increased to assist the Company's cash flow. The obligations of the Company to
Republic are secured by a lien on certain of the Company's assets, consisting
primarily of accounts receivable (and merchandise relating thereto), inventory,
equipment and intangible assets of the Company. As a result, there can be no
assurance that there will be assets available for distribution to stockholders
or creditors other than Republic in the event of a liquidation of the Company.
EMPLOYEES
At March 31, 1999, the Company employed 174 full time individuals, of
which seventeen occupy executive or managerial positions, approximately 161 hold
design, production, quality control or distribution positions and the balance
occupy sales, clerical and office positions. Approximately eight of the
Company's warehouse packers are covered by a collective bargaining agreement
with the United Production Workers Union Local 17-18 which is effective from
June 15, 1996 through and including June 14, 1999, which agreement has expired.
The Company is currently renegotiating its collective bargaining agreement, and
does not expect any difficulty in completing a favorable agreement in the near
future. The Company considers its relations with its employees to be good and
has not experienced any interruption of operations due to labor disputes.
COMPUTER LEASING
In November 1998, the Company entered into capital leases for the
acquisition of computer hardware and software for its design, shipping and
administrative departments. The new system will significantly enhance the flow
and extent of information throughout the Company, including integration of all
sales groups and other units within the Company's infrastructure, and will
ensure that the Company's operations will not encounter problems associated with
the so-called "Year 2000" computer problem (see "Year 2000 Computer Issues"
below).
The Company has also entered into a consulting agreement with Richter
Systems, Inc. to train employees of the Company and offer technical support, so
as to enable the full application of the computer system. The final cost of the
system will depend on the extent of training and consulting required. The
Company plans for
11
<PAGE>
the new system to be fully operational throughout the Company in early to
mid-summer of 1999.
ITEM 2. DESCRIPTION OF PROPERTIES.
The Company leases four facilities in Manhattan and one in New Jersey.
The four Manhattan facilities, located at 1407 Broadway (its principal executive
offices), 264 West 40th Street, 1384 Broadway and 1410 Broadway, and which
encompass approximately 14,000 square feet in total, house the Company's
showroom and sales, merchandising, mail order and design staffs.
The Company's principal executive offices are currently located at 1407
Broadway, in Manhattan. In January 1999 the Company executed a lease for the
entire twenty-fourth floor in that building and occupied that space in June
1999. The landlord has provided $342,000 in construction allowances in order to
customize the office space. The new office is the subject of a lease requiring a
current annual base rental of $410,400 and continues until August 1, 2006. The
Company's prior lease of Suite 2004 in the same building was terminated.
The Company's mail order showroom was located at 1384 Broadway in
Manhattan. This space is the subject of a lease requiring a current annual base
rental of approximately $50,000 and continues until November 30, 2000. The
Company has moved its mail order staff to its 1407 Broadway facility and hopes
to sublease or assign this location to a third party.
The Company's TLC showroom is located at 100 West 33rd Street in
Manhattan. This space is the subject of a lease requiring a current annual base
rental of $119,925 and continues until January 14, 2003. The Company intends to
move its TLC staff to its 1407 Broadway facility and hopes to sublease or assign
this location to a third party.
The Company's design room was previously located at 264 West 40th
Street in Manhattan. This space is the subject of a lease requiring a current
annual base rental of $60,000 and continues until April 30, 2003. The Company
has moved its design staff to its Seacaucus facility and hopes to sublease or
assign this Manhattan location to a third party.
The Company's Impatiens showroom is located at 1410 Broadway in
Manahattan. This space is the subject of a lease requiring a current annual base
rent of $111,722 and continues until November 16, 2005.
The Company's warehouse and certain executive offices are located in
Seacaucus, New Jersey (the "Warehouse"). In October 1998, the Company executed a
six year lease requiring a current annual base rental of approximately $400,800
and continues until December 2004, with an option for the Company to renew for
an additional two years. The Warehouse consists of 72,706 square feet for the
combined executive offices and Company warehouse. The Warehouse has consolidated
the warehouse, executive offices and design space, currently located in
Manhattan. As part of the lease, the landlord performed a significant amount of
work at its expense to prepare the space for the Company's occupancy.
The Company has sent a termination notice to the landlord of its
previous warehouse space in Cranbury, New Jersey, which termination is based
upon the Company's belief that the landlord breached certain material
obligations under the agreement. Despite the Company's position that the
landlord's breach justified the Company's termination, the Company has sought to
find a new tenant for the warehouse space in order to mitigate any potential
damages. The new tenant that the Company identified was rejected by the landlord
as unsuitable. The issue is currently under negotiations and may result in
litigation, the results of which cannot be predicted at this time.
The Company believes that its existing facilities are adequate to meet
its current and currently foreseeable requirements, although there can be no
assurance thereof. There can be no assurance that the Company can sublease or
assign any of its premises as hoped.
12
<PAGE>
ITEM 3. LEGAL PROCEEDINGS
Except as described below there are no material pending legal
proceedings to which the Company is a party or to which any of its property is
subject. The Company is subject to normal litigations in the ordinary course of
business.
Jenna Lane, Inc. v. Jordache Enterprises et al. The Company and its
wholly owned subsidiary Jenna Lane Polo Association, Ltd. initiated this action
alleging breach of a license agreement entered into with Quade, Inc. (involving
the U.S. Polo Association trademarks), and related tort claims. The complaint
demands $5 million in monetary damages, plus punitive damages. In lieu of
answering the complaint, Quade and certain other entities moved to compel
arbitration, and Jordache and certain other entities moved to stay the case
until after the arbitration. The Company is opposing these motions, which are
pending. The arbitration demand asserts $1,000,000 in damages, a portion of
which arises from unpaid minimum guaranteed royalties, plus dilution of the
trademarks. The Company hopes to reach an out-of-court settlement of all claims,
but there can be no assurance thereof. It is premature to estimate the
likelihood of an unfavorable outcome.
Jenna Lane v. S.M.B. Textiles, et al. The Company filed this suit in
state court alleging late delivery of nonconforming goods, resulting in over
$125,000 in damages. One of the defendants, The Feldman Co., concurrently filed
its own lawsuit against the Company alleging improper charge backs totaling
$115,000. The cases are likely to be consolidated. Neither side has yet answered
the other's allegations. It is premature to estimate the likelihood of an
unfavorable outcome.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
13
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
MARKET FOR COMMON STOCK: In March 1997, the Company completed its
initial public offering of investment units comprising shares of Common Stock
and Warrants. Each Warrant entitles the holder to purchase one share of Common
Stock at an exercise price currently equal to $6.36, subject to adjustment, at
any time until March 19, 2000. The Common Stock and Warrants are listed on
Nasdaq under the symbols JLNY and JLNYW, respectively.
Common Stock
$0.01 par value
<TABLE>
<CAPTION>
Bid Ask
Period High Low High Low
- ------- ------- -------- ------- ------
Fiscal Year 1999
<S> <C> <C> <C> <C>
First Quarter
(April 1998 through June) 8.50 1.75 8.625 1.875
Second Quarter
(July through September) 2.9375 1.53125 3 1.625
Third Quarter
(October through December) 2.25 1.03125 2.50 1.21875
Fourth Quarter
(January through March) 2.6875 1.875 2.75 1.9375
Fiscal Year 1998
First Quarter
(April 1997 through June) 9.4309 7.7265 9.7718 7.7833
Second Quarter
(July through September) 9.7718 8.7491 9.9422 8.8059
Third Quarter
(October through December) 12.3851 9.6581 12.6124 9.8855
Fourth Quarter
(January through March) 11.2489 8.6875 11.3057 8.7500
</TABLE>
14
<PAGE>
Class A Common Stock Purchase Warrants
<TABLE>
<CAPTION>
Closing Bid Closing Ask
Period High Low High Low
- ------- ------- -------- ------- ------
<S> <C> <C> <C> <C>
Fiscal Year 1999
First Quarter
(April 1998 through June) 2.625 .50 2.875 .875
Second Quarter
(July through September) 1.50 .1875 1.75 .3125
Third Quarter
(October through December) .53125 .125 .625 .25
Fourth Quarter
(January through March) .6875 .3125 .8125 .50
Fiscal Year 1998
First Quarter
(April 1997 through June) 4.5450 3.6360 4.9995 3.9769
Second Quarter
(July through September) 4.4314 3.9769 4.9995 4.2041
Third Quarter
(October through December) 6.1358 4.4314 6.3630 4.9995
Fourth Quarter
(January through March) 5.6813 2.7500 6.1358 2.9375
</TABLE>
As a condition to listing the Company's securities on Nasdaq, the
Company is required to ensure that (i) independent directors represent a
majority of the members of the Board of Directors, and for one such independent
director to serve as Chairman and (ii) Messrs. Dobies and Sobel agree not to
sell or otherwise dispose of any securities of the Company beneficially owned by
them (other than certain shares sold by them in the Company's initial public
offering) for a period of two years from the effective date of the initial
public offering, which date was March 19, 1999. There can be no assurance that
Nasdaq will not request further restrictions in the future, or that any other
securities exchange on which the Company desires to list its securities will not
request similar or more onerous restrictions.
HOLDERS: As of May 21, 1999, there were approximately 27 holders of the
Common Stock (including CEDE & Co. on behalf of numerous other beneficial
owners) and 16 holders of the Warrants.
DIVIDENDS: The Company has not paid any cash dividends on its Common
Stock since inception and does not expect to declare or pay any cash dividends
in the foreseeable future. The Company presently anticipates that all earnings
will be retained to finance the continued growth and development of the
Company's business. Any future determination as to the payment of cash dividends
will depend upon the Company's financial condition, results of operations and
other factors deemed relevant by the Board of Directors.
15
<PAGE>
On February 17, 1998 the Company declared a stock dividend (the "Stock
Dividend") which was paid on March 13, 1998. The market value of the dividend
was greater than the Company's earned surplus and aggregate retained earnings
but the Board of Directors of the Company desired to reward its stockholders,
who had invested in the Company and supported it.
STOCK BUYBACK PROGRAM: In September 1998, the Board of Directors of the
Company approved an 18- month program to repurchase up to 500,000 shares of the
Company's common stock in the public market. Repurchases take place in the
discretion of the management, subject to market price at the time, and are
subject to available financing. Through June 15, 1999, the Company has
repurchased an aggregate of 100,000 shares of common stock at prices ranging
from $1.31 per share to $2.25 per share.
INVESTMENT BANKING FIRM ENGAGEMENT: In March 1999, the Company retained
Financo, Inc. ("Financo") as its exclusive financial advisor to review and
analyze the financial and structural alternatives available to the Company, with
a view towards meeting its long-term strategic objectives and maximizing of
shareholder value. Financo is a New York based investment banking firm
specializing in mergers, acquisitions, divestitures, restructuring and other
financial advisory services for apparel, retailing and other merchandising and
consumer product companies. The alternatives being evaluated may include a
merger or combination with a strategic operator, the formation of strategic
alliances or joint ventures, the acquisition of another company, and other
similar opportunities. Financo received an initial retainer of $50,000, and
shall receive certain additional fees upon consummation of a transaction. There
can be no assurance that Financo will locate a suitable opportunity for the
Company.
16
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
YEAR ENDED MARCH 31,
----------------------------------
1999 1998 1997
---- ---- ----
STATEMENT OF OPERATIONS DATA:
Net sales $60,392,370 $42,561,796 $35,372,386
Operating income 1,970,313 1,241,394 804,523
Net income 741,569 517,157 136,260
Net Income Per Share:
Basic 0.17 0.11 0.03
Diluted 0.16 0.09 0.03
Weighted average common shares
outstanding:
Basic 4,445,624 4,719,322 2,305,749
Diluted 4,530,822 5,531,859 2,333,234
MARCH 31,
----------------------------------
1999 1998 1997
---- ---- ----
BALANCE SHEET DATA:
Working capital $ 7,335,615 $ 7,326,297 $ 7,191,854
Total assets 14,064,775 11,537,169 10,034,842
Long-term debt 690,463 3,653 16,797
Shareholders' equity 8,664,261 8,072,553 7,461,770
17
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following is a discussion of the financial condition and results of
operations of the Company for the three years ended March 31, 1999.
Highlights
The Company designs, manufactures (through contractors) and markets high
quality, popular priced "junior", "missy", and large size basic and fashion
sportswear and other apparel for women and children. The Company primarily
serves both mass merchandise and specialty retail store chains. The Company's
products are manufactured in a variety of woven and knit fabrications.
In January 1998, the Company established the Smart Objects Sales group to sell
junior and large size moderately priced domestic knit sweaters. Full scale
operations started in Fall 1998.
In February 1998, the Company entered into a license agreement with the master
licensee of the United States Polo Association to utilize the US Polo
Association brand. The Company has not made certain payments under the agreement
because of its belief that the licensor has breached the license agreement and
has brought an action against the licensor and other parties (see Item 3 "Legal
Proceedings").
In May 1998, the Company established its children's sales group. On June 19,
1998, the Company purchased substantially all of the assets of children's wear
manufacturer T.L.C. for Girls, Inc. ("TLC"), a debtor-in-possession under
Chapter 11 of the United States Bankuptcy Code, for an aggregate purchase price
of $630,000.
In July 1998, the Company entered into a license agreement for the "Bongo"
trademark. The initial term of the agreement extends to June 2002 and requires
certain guaranteed minimum royalties. The Company has been merchandising large
size women's clothing under this license.
In July 1998, the Company formed a sales group for dresses under the name
"Impatiens" to sell petite, missy and large size moderate price dresses.
Results of Operations
The following table sets forth, for the year indicated, the Company's statements
of operations data as a percentage of net sales.
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
-----------------------------------------
1999 1998 1997
---------- --------- --------
<S> <C> <C> <C>
Net Sales 100.0% 100.0% 100.0%
Cost of Sales 78.6 81.1 82.2
---------- --------- ---------
Gross Profit 21.4 18.9 17.8
Operating Expenses 18.1 16.0 15.5
---------- --------- ---------
Income from operations 3.3 2.9 2.3
Interest Expense 1.1 0.7 1.7
---------- ---------- ---------
Income Before Income Taxes 2.2 2.2 0.6
Provision for Income Taxes 0.9 0.9 0.2
----------- ---------- ---------
Net Income 1.3% 1.3% 0.4%
=========== ========== ==========
</TABLE>
18
<PAGE>
Year Ended March 31, 1999 Compared with Year Ended March 31, 1998
Net sales of $60.4 million in the year ended March 31, 1999 represented an
increase of $17.8 million, or 41.9% over net sales of $42.6 million in the year
ended March 31, 1998. The increase in net sales was primarily attributable to
the addition of the Company's sweater sales groups (Smart Objects) and its
children's sales group (TLC) with sales of $3.1 million and $7.1 million,
respectively. In addition, the Company's established core sales groups (Jenna
Lane and JLNY), representing domestic and import products, experienced strong
demand.
The Company's gross profit increased $4.9 million, or 60.3%, to $12.9 million
for the year ended March 31, 1999 from $8.0 million for the year ended March 31,
1998. Gross profit margin increased to 21.4% in the year ended March 31, 1999
from 18.9% in the year ended March 31, 1998. The increase in gross profit margin
resulted primarily from increased sales.
Operating expenses increased $4.1 million, or 60.6%, to $10.9 million in the
year ended March 31, 1999 from $6.8 million in the year ended March 31, 1998.
The increase was primarily due to an increase of $2.1 million in payroll and
related costs, including $772,000 in increased selling salaries, as well as
$377,000 in selling-related expenses, which resulted from increased sales
volume. Factoring costs increased $171,000 as a result of higher sales volume.
As a result of the above factors, income from operations increased 58.7% from
$1.2 million in the year ended March 31, 1998 to $2.0 million in the year ended
March 31, 1999.
Interest expense increased from $322,000 in 1998 to $667,000 in 1999. This
increase is primarily the result of additional borrowing for working capital
needs and capital lease obligations.
Year Ended March 31, 1998 Compared with Year Ended March 31, 1997
Net sales of $42.6 million in the year ended March 31, 1998 represented an
increase of $7.2 million, or 20.3% over net sales of $35.4 million in the year
ended March 31, 1997. The increase in net sales was primarily attributable to
continued expansion of the customer base and increased volume from several
existing customers.
The Company's gross profit increased $1.7 million, or 28.1%, to $8.0 million for
the year ended March 31, 1998 from $6.3 million for the year ended March 31,
1997. Gross profit margin increased to 18.9% in the year ended March 31, 1998
from 17.8% in the year ended March 31, 1997. The increase in gross profit margin
resulted primarily from higher import sales volume. Gross profit from import
sales is generally higher than gross profit from domestically produced
merchandise.
Operating expenses increased $1.3 million, or 24.1%, to $6.8 million in the year
ended March 31, 1998 from $5.5 million in the year ended March 31, 1997. The
increase was primarily due to an increase of $728,000 in payroll and related
costs, including $407,000 in increased selling salaries, as well as $220,000 in
selling-related expenses which resulted from increased sales volume. Factoring
costs decreased $45,000 as a result of lower commission rates, however, a
$156,000 credit loss was incurred during the year relating to Montgomery Ward's
bankruptcy filing.
As a result of the above factors, income from operations increased 54.3% from
$805,000 in the year ended March 31, 1997 to $1.2 million in the year ended
March 31, 1998.
Interest expense decreased from $596,000 in 1997 to $322,000 in 1998. This
decrease is primarily attributable to the repayment of promissory notes issued
in November 1995 and repaid in March 1997 from the proceeds of the Company's
initial public offering.
19
<PAGE>
Liquidity and Capital Resources
Since its formation in 1995, the Company has financed its operations and met its
capital requirements primarily through funds raised from its founders, three
private placement offerings, as well as borrowings under its factoring
arrangements, vendor financing and, to a lesser extent, equipment financing. In
March 1997, the Company completed an initial public offering of investment units
resulting in proceeds, net of underwriting discounts and offering costs, of
$5,352,000. These financing activities provided net cash of $4.6 million in
fiscal 1997, $15,000 in fiscal 1998 and used $224,000 in fiscal 1999.
Operating activities used net cash of $3.9 million in fiscal 1997, $24,000 in
fiscal 1998 and provided net cash of $1.1 million in fiscal 1999. The principal
uses of operating cash are to purchase fabric and manufacture its products,
purchase import finished goods and financing accounts receivable. Inventory
levels increased as result of the corresponding increased production to support
the growth in sales, continued expansion of import product categories and the
timing of Spring '99 shipments to customers.
The Company's capital expenditures totaled $175,000, $362,000 and $1,060,000 in
fiscal 1997, 1998 and 1999, respectively. These capital expenditures were for
computer, material handling, design and office equipment, associated with
upgrading information technology and its core business systems as well as
improvements to its new warehouse and distribution center and administrative
offices. $933,000 of the 1999 expenditures have been financed through a leasing
company. The Company does not have any material commitments for capital
expenditures at this time. Also, included in the $818,000 of net cash used in
investing activities is $630,000 which was used in the acquisition of TLC.
Year 2000 Computer Issues
What is commonly known as the "Year 2000 Issue" arises because many computer
hardware and software systems use only two digits to represent the year. As a
result, these systems and programs may not calculate dates beyond 1999, which
may cause errors in information or system failures.
With respect to its internal systems, the Company is taking appropriate steps to
remediate the year 2000 issues and does not expect the costs of these efforts to
be material. However, the year 2000 readiness of the Company's suppliers may
vary. While the Company does not believe the year 2000 matters discussed above
will have a material impact on its business, financial condition or results of
operations, it is uncertain whether or to what extent the Company may be
affected by such matters.
Recently Issued Accounting Pronoucements
In June 1998, the Financial Accounting Standards Board (FASB) issued Statement
of Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities" which requires entities to recognize all
derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. SFAS No. 133 is effective
for financial statements for fiscal years beginning after June 15, 1999. The
Company is not currently affected by SFAS No. 133.
20
<PAGE>
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not Applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See pages F-1 through F-17 annexed hereto. All other schedules are omitted
because they are not required, are not applicable, or the information is
included in the financial statements or notes thereto.
21
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE.
Not Applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The following sets forth certain information with respect to the
directors, executive officers and key employees of the Company.
Name Age Position(s)
- --------------- ------ -------------
Mitchell Dobies 41 President, Treasurer, Co-Chief Executive
Officer and Director
Charles Sobel 39 Co-Chief Executive Officer, Executive
Vice President and Director
Eric Holtz 33 Director of Import Sales Group
Kathleen A. Dressel 33 Secretary
Mitchell Herman 47 Chairman of the Board of Directors
Gerald L. Kanter 64 Director
Gerald Cohen 66 Director
Directors of the Company are elected annually at the annual meeting of
stockholders and serve until the next annual meeting and until their successors
are elected and qualify. Under the Company's By-laws, the number of directors
constituting the entire Board of Directors shall be fixed, from time to time, by
the directors then in office or by the stockholders. The directors may, however,
decrease or increase the number of directors by majority action without
soliciting stockholder approval. If the number of directors is not fixed, the
number shall be four.
As a condition to listing the Company's securities on Nasdaq, the
Company was required to ensure that independent directors represent a majority
of the members of the Board of Directors, and for one such independent director
to serve as Chairman. Messrs. Herman, Cohen and Kanter, each an independent
director, represent a majority of the Board of Directors, and Mr. Herman serves
as Chairman of the Board of Directors. There can be no assurance that Nasdaq
will not request further restrictions in the future, or that any other
securities exchange on which the Company desires to list its securities will not
request similar or more onerous restrictions.
MITCHELL DOBIES. Mr. Dobies is President, Co-Chief Executive Officer,
Treasurer, and a director of the Company. Prior to founding Jenna Lane, Inc.,
Mr. Dobies had extensive experience in apparel manufacturing and operation with
both major organizations and entrepreneurial operations. From 1986 until 1995
Mr. Dobies was
22
<PAGE>
President and Chief Executive Officer of CR & ME, Ltd. ("CR & ME"), a vertically
integrated domestic manufacturer of cut and sewn knit sportswear. From 1984 to
1986 he was Director of Operations of the Mens Division of Izod LaCoste, a
division of General Mills. From 1982 to 1984 he was a shareholder and general
manager of Necessary Objects, a moderate priced domestic manufacturer of women's
apparel, of which he was the founder. From 1979 to 1981 he was a buyer for a
retail chain specializing in junior apparel.
CHARLES SOBEL. Charles Sobel is Co-Chief Executive Officer, Executive
Vice President and a director of the Company, and is in charge of all aspects of
sales and merchandising. Mr. Sobel, a founder of the Company, has more than 13
years of experience in selling women's apparel and maintains an extensive
network of relationships with the senior management of most retail chains. From
January, 1994 until February, 1995 Mr. Sobel was Executive Vice President of CR
& ME. From September, 1992 until joining CR & ME he was the Vice President and
Sales Manager for the Women's Wear Division of Gitano Corporation. From 1982 to
1992 he was a Principal and Sales Manager of Style Up of California, a
manufacturer of women's apparel and a division of Breton Industries.
ERIC HOLTZ. Mr. Holtz, Director of the Import Sales Group, has been with
the Company since January 1996. From December 1994 to January 1996, he was
President of the Denim Division of Miss Juli Apparel. From 1992 through December
1994, Mr. Holtz was a sales representative for Pellini/True Blue.
KATHLEEN A. DRESSEL. Ms. Dressel, Secretary of the Company, has been
Operations Manager of the Company since its inception. From September 1994
through March 1995, she was an Executive Assistant at CR & ME. From April 1986
through September 1994 she was an Administrative Assistant to the Senior Vice
President of Merchandising of Jamesway Corporation, a regional discount
department store.
MITCHELL HERMAN. Mr. Herman became a director in March 1997 and was
elected Chairman of the Board in December 1997. Since 1995, he has been Sales
Manager of By Design, an apparel manufacturer. From 1990-1995, he was Sales
Manager of E.S. Sutton, a manufacturer of knitwear. He also has previously been
associated with Bradlees Department Stores, Jefferson Ward Stores and J.W. Mays.
GERALD L. KANTER. Mr. Kanter became a director in December of 1997.
Since 1997, he has been a private retail consultant. From 1996-1997, he was the
National Managing Director of Retail Turnarounds for KPMG Peat Marwick. From
1993-1995, he was the President and CEO for Retail Holdings Group, Inc. From
1990-1992, he was an Executive Vice President for Ames Department Stores.
GERALD COHEN. Mr. Cohen became a director in March 1997. He is a
certified public accountant and attorney who for the past five years has acted
primarily as a financial consultant advising businesses in business combinations
and formations and general advisory work. He has previously served on the boards
of directors of more than 12 public companies and several private companies. Mr.
Cohen formerly served as personal accountant to Charles Sobel.
DIRECTORS' COMPENSATION
The Company currently pays $1,500 per meeting (plus travel and related
expenses) to members of the Board of Directors who are not employees of the
Company. On March 12, 1997, the Board of Directors granted
23
<PAGE>
2,500 ten-year stock options at an exercise price currently equal to $4.54,
outside the Company's 1996 Incentive Stock Option Plan (the "Option Plan"), to
each of Messrs. Jay Haft, Herman and Cohen, which were effective on March 19,
1997. In appreciation of his services, upon Mr. Haft's resignation as a director
in December 1997, the vesting of his 2,500 options was accelerated. On April 28,
1998, Messrs. Kanter, Herman and Cohen each received 2,500 ten-year stock
options with a current exercise price of $4.00, outside the Option Plan. These
options originally had an exercise price of $7.60 but were repriced in December
1998. In September 1998, Messrs. Kanter, Herman and Cohen each received 1,250
ten-year stock options with a current exercise price of $1.82, outside the
Option Plan.
Further, in June 1996, the Company paid Lawrence Kaplan, a former
director, compensation in the form of 57,143 shares of Common Stock designated
as "Performance Shares" as an inducement for him to continue to serve as a
director of the Company. With respect to the Performance Shares, (a) in June
1998, one-half of these shares ("One Half") were repurchased by the Company for
the par value thereof since the Company did not achieve net income before taxes
("Net Income") of at least $1.5 million during the period of April 1, 1997
through March 31, 1998 ("1998 Fiscal Year"), and (b) One Half were repurchased
by the Company for the par value thereof since the Company did not achieve Net
Income of at least $2.25 million during the period of April 1, 1998 through
March 31, 1999 ("1999 Fiscal Year"). Net Income, for purposes of the foregoing
calculations, excluded any tax deduction obtained by the Company solely on
account of the issuance of the Performance Shares and all similar Performance
Shares issued to directors and members of management of the Company. These
shares are not subject to vesting or any other requirement that Mr. Kaplan
remain as a director of the Company for any specified period. In February 1997,
Mr. Kaplan resigned as a director of the Company.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors includes an Audit Committee consisting of Messrs.
Dobies, Kanter and Cohen. The Audit Committee reviews (i) the Company's audit
functions, (ii) with management, the finances, financial condition and interim
financial statements of the Company, (iii) with the Company's independent
auditors, the year end financial statements of the Company and (iv) the
implementation of any action recommended by the independent auditors.
ITEM 11. EXECUTIVE COMPENSATION.
The response to this item will be included in a definitive proxy
statement filed within 120 days after the end of the Company's fiscal year,
which proxy statement is incorporated herein by this reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The response to this item will be included in a definitive proxy
statement filed within 120 days after the end of the Company's fiscal year,
which proxy statement is incorporated herein by this reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The response to this item will be included in a definitive proxy
statement filed within 120 days after the end of the Company's fiscal year,
which proxy statement is incorporated herein by this reference.
24
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------
1.1 Form of Underwriting Agreement between the Company and Walsh
Manning Securities, LLC (the "Underwriter") (incorporated by
reference to registrant's Registration Statement on Form S-
1, registration number 333-11979)
1.2 Form of Warrant Agreement among the Company, the Underwriter
and American Stock Transfer Company, as warrant agent
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
3.1 Certificate of Incorporation of Registrant (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
3.3 By-laws of Registrant (incorporated by reference to
registrant's Registration Statement on Form S-1,
registration number 333-11979)
4.1 Specimen common stock certificate (incorporated by reference
to registrant's Registration Statement on Form S-1,
registration number 333-11979)
4.2 Specimen preferred stock certificate (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
4.3 Form of Underwriter's Warrant for the Purchase of Units
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
4.4 Form of Warrant Agreement between the Company and American
Stock Transfer Company, as warrant agent (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
10.1 Amended and Restated Employment Agreement, dated as of
February 1, 1997, between the Registrant and Mitchell Dobies
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.2 Amended and Restated Employment Agreement, dated as of
February 1, 1997, between the Registrant and Charles Sobel
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.3 Employment Agreement, dated May 21, 1997, between the
Registrant and Eric Holtz. (incorporated by reference to
registrant's annual report on Form 10-K for the fiscal year
ended March 31, 1997)
10.4 Letter Agreement between the Registrant and Lawrence Kaplan
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.5 Termination and Performance Shares Repurchase Agreement,
dated February 8, 1996, by and between the Registrant and
Ernie Baumgarten (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
10.6 Factoring Agreement, dated March 17, 1995, between the
Registrant and Republic Factors Corp. ("Republic"), as
amended to date (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
25
<PAGE>
10.7 Security Agreement, dated March 17, 1995, between the
Registrant and Republic (incorporated by reference to
registrant's Registration Statement on Form S-1,
registration number 333-11979)
10.8 1996 Incentive Stock Option Plan of Jenna Lane, Inc.
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.9 Collective Bargaining Agreement by and between United
Production Workers Union Local 17-18 and the Company, dated
June 15, 1996 (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
10.10 Form of Letter Agreement between the Company and the
Underwriter regarding consulting services (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
10.11 Form of Registration Rights Agreement between the Company
and certain warrant holders (incorporated by reference to
registrant's Registration Statement on Form S-1,
registration number 333-11979)
10.12 Form of Selected Dealer Agreement for initial public
offering (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
10.13 License Agreement between the Company and Quade, Inc. dated
as of February 5, 1998 (incorporated by reference to
registrant's report on Form 10-K for the period ended March
31, 1999)
10.14 Supply and Financing Agreement between the Company and
T.L.C. for Girls, Inc. (incorporated by reference to
registrant's report on Form 10-K for the period ended March
31, 1999)
10.15 Purchase Agreement between Jenna Lane Kids, Inc. (now known
as T.L.C. for Kidz, Inc.) and T.L.C. for Girls, Inc.
(incorporated by reference to registrant's report on Form
10-K for the period ended March 31, 1999)
10.16 Employment Agreement, dated as of July 6, 1998, between the
Registrant and Andrew Miller (incorporated by reference to
registrant's report on Form 10-Q for the period ended June
30, 1998)
10.17 Amendment to Employment Agreement, dated as of July 5,
1998, between the Registrant and Eric Holtz (incorporated by
reference to registrant's report on Form 10-Q for the period
ended June 30, 1998)
10.18 License Agreement dated as of July 1, 1998, between Jenna
Lane Licensing I, Inc. And Michael Caruso & Co.
(incorporated by reference to registrant's report on Form
10-Q for the period ended June 30, 1998)
10.19 Factoring Agreement, dated July 14, 1998, between T.L.C.
for Kidz, Inc. and Republic Business Credit Corporation
(incorporated by reference to registrant's report on Form
10-Q for the period ended June 30, 1998)
10.20 Factoring Agreement, dated July 14, 1998, between Jenna
Lane Polo Association and Republic Business Credit
Corporation (incorporated by reference to registrant's
report on Form 10-Q for the period ended June 30, 1998)
10.21 Separation agreement, dated April 19, 1999, between the
Registrant and Andrew Miller.
10.22 Lease, dated January 5, 1999, between the Company and
Gettinger Associates.
10.23 Lease, dated October 13, 1998, between the Company and
Hartz Mountain Associates.
21.1 Subsidiaries
27.1 Financial Data Schedule
26
<PAGE>
(b) Financial Statements and Supplementary Data - Reference is
made to the Index to Financial Statements under Item 8 in Part II hereof, where
these documents are listed.
(c) Reports on Form 8-K. The registrant has submitted no Reports
on Form 8-K during the fourth fiscal quarter of its 1999 fiscal year.
27
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
and Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
JENNA LANE, INC.
Date: June 28 , 1999
By: /s/ Mitchell Dobies
------------------------------------------
Mitchell Dobies, President, Co-Chief
Executive Officer
By: /s/ Charles Sobel
------------------------------------------
Charles Sobel, Co-Chief Executive Officer
By: /s/ Mitchell Dobies
------------------------------------------
Mitchell Dobies, Principal
Accounting Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Mitchell Dobies Director and 6/28/99
- ---------------------------- Principal Executive
Mitchell Dobies Officer
/s/ Charles Sobel Director and 6/28/99
- ---------------------------- Principal Executive
Charles Sobel Officer
/s/ Mitchell Dobies Principal Accounting 6/28/99
- ---------------------------- Officer
Mitchell Dobies
/s/ Gerald L. Kanter Director 6/28/99
- ----------------------------
Gerald L. Kanter
/s/ Mitchell Herman Chairman of the 6/28/99
- ---------------------------- Board of Directors
Mitchell Herman
/s/ Gerald Cohen Director 6/28/99
- ----------------------------
Gerald Cohen
28
<PAGE>
EXHIBIT
NUMBER DESCRIPTION
- --------- ------------
1.1 Form of Underwriting Agreement between the Company and Walsh
Manning Securities, LLC (the "Underwriter") (incorporated by
reference to registrant's Registration Statement on Form S-
1, registration number 333-11979)
1.2 Form of Warrant Agreement among the Company, the Underwriter
and American Stock Transfer Company, as warrant agent
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
3.1 Certificate of Incorporation of Registrant (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
3.3 By-laws of Registrant (incorporated by reference to
registrant's Registration Statement on Form S-1,
registration number 333-11979)
4.1 Specimen common stock certificate (incorporated by reference
to registrant's Registration Statement on Form S-1,
registration number 333-11979)
4.2 Specimen preferred stock certificate (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
4.3 Form of Underwriter's Warrant for the Purchase of Units
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
4.4 Form of Warrant Agreement between the Company and American
Stock Transfer Company, as warrant agent (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
10.1 Amended and Restated Employment Agreement, dated as of
February 1, 1997, between the Registrant and Mitchell Dobies
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.2 Amended and Restated Employment Agreement, dated as of
February 1, 1997, between the Registrant and Charles Sobel
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.3 Employment Agreement, dated May 21, 1997, between the
Registrant and Eric Holtz. (incorporated by reference to
registrant's annual report on Form 10-K for the fiscal year
ended March 31, 1997)
10.4 Letter Agreement between the Registrant and Lawrence Kaplan
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.5 Termination and Performance Shares Repurchase Agreement,
dated February 8, 1996, by and between the Registrant and
Ernie Baumgarten (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
10.6 Factoring Agreement, dated March 17, 1995, between the
Registrant and Republic Factors Corp. ("Republic"), as
amended to date (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
10.7 Security Agreement, dated March 17, 1995, between the
Registrant and Republic (incorporated by reference to
registrant's Registration Statement on Form S-1,
registration number 333-11979)
10.8 1996 Incentive Stock Option Plan of Jenna Lane, Inc.
(incorporated by reference to registrant's Registration
Statement on Form S-1, registration number 333-11979)
10.9 Collective Bargaining Agreement by and between United
Production Workers Union Local 17-18
29
<PAGE>
and the Company, dated June 15, 1996 (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
10.10 Form of Letter Agreement between the Company and the
Underwriter regarding consulting services (incorporated by
reference to registrant's Registration Statement on Form
S-1, registration number 333-11979)
10.11 Form of Registration Rights Agreement between the Company
and certain warrant holders (incorporated by reference to
registrant's Registration Statement on Form S-1,
registration number 333-11979)
10.12 Form of Selected Dealer Agreement for initial public
offering (incorporated by reference to registrant's
Registration Statement on Form S-1, registration number
333-11979)
10.13 License Agreement between the Company and Quade, Inc. dated
as of February 5, 1998 (incorporated by reference to
registrant's report on Form 10-K for the period ended March
31, 1999)
10.14 Supply and Financing Agreement between the Company and
T.L.C. for Girls, Inc. (incorporated by reference to
registrant's report on Form 10-K for the period ended March
31, 1999)
10.15 Purchase Agreement between Jenna Lane Kids, Inc. (now known
as T.L.C. for Kidz, Inc.) and T.L.C. for Girls, Inc.
(incorporated by reference to registrant's report on Form
10-K for the period ended March 31, 1999)
10.16 Employment Agreement, dated as of July 6, 1998, between the
Registrant and Andrew Miller (incorporated by reference to
registrant's report on Form 10-Q for the period ended June
30, 1998)
10.17 Amendment to Employment Agreement, dated as of July 5,
1998, between the Registrant and Eric Holtz (incorporated by
reference to registrant's report on Form 10-Q for the period
ended June 30, 1998)
10.18 License Agreement dated as of July 1, 1998, between Jenna
Lane Licensing I, Inc. And Michael Caruso & Co.
(incorporated by reference to registrant's report on Form
10-Q for the period ended June 30, 1998)
10.19 Factoring Agreement, dated July 14, 1998, between T.L.C.
for Kidz, Inc. and Republic Business Credit Corporation
(incorporated by reference to registrant's report on Form
10-Q for the period ended June 30, 1998)
10.20 Factoring Agreement, dated July 14, 1998, between Jenna
Lane Polo Association and Republic Business Credit
Corporation (incorporated by reference to registrant's
report on Form 10-Q for the period ended June 30, 1998)
10.21 Separation agreement, dated April 19, 1999, between the
Registrant and Andrew Miller.
10.22 Lease, dated January 5, 1999, between the Company and
Gettinger Associates.
10.23 Lease, dated October 13, 1998, between the Company and
Hartz Mountain Associates.
21.1 Subsidiaries
30
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
Independent Auditors' Report F-2
Consolidated Balance Sheets - March 31, 1999 and 1998 F-3
Consolidated Statements of Operations -
Years Ended March 31, 1999, 1998 and 1997 F-4
Consolidated Statements of Shareholders' Equity -
Years Ended March 31, 1999, 1998 and 1997 F-5
Consolidated Statements of Cash Flows -
Years Ended March 31, 1999, 1998 and 1997 F-6
Notes to Consolidated Financial Statements F-7 - F-17
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Shareholders
Jenna Lane, Inc.
We have audited the accompanying consolidated balance sheets of Jenna Lane, Inc.
and Subsidiaries as of March 31, 1999 and 1998, and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
three years in the period ended March 31, 1999. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Jenna Lane, Inc. and
Subsidiaries as of March 31, 1999 and 1998, and the results of their operations
and their cash flows for each of the three years in the period ended March 31,
1999, in conformity with generally accepted accounting principles.
EDWARD ISAACS & COMPANY LLP
New York, New York
June 7, 1999
F-2
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31,
----------------------
ASSETS 1999 1998
-------- --------
<S> <C> <C>
CURRENT ASSETS:
Cash $ 41,465 $ 6,595
Receivables 282,942 4,440,310
Advances to suppliers and others 664,704 145,389
Inventories 10,464,842 5,888,085
Prepaid expenses and other 445,713 233,881
Deferred income taxes 70,000 43,000
----------- -----------
TOTAL CURRENT ASSETS 11,969,666 10,757,260
PROPERTY AND EQUIPMENT, NET 1,310,337 501,617
OTHER ASSETS 784,772 278,292
----------- -----------
$14,064,775 $11,537,169
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 4,008,341 $ 2,925,661
Accrued liabilities 329,281 187,208
Income taxes payable 112,153 305,645
Current maturities of long-term debt 184,276 12,449
----------- -----------
TOTAL CURRENT LIABILITIES 4,634,051 3,430,963
----------- -----------
LONG-TERM DEBT 690,463 3,653
----------- -----------
DEFERRED INCOME TAXES 76,000 30,000
----------- -----------
SHAREHOLDERS' EQUITY:
Common stock, $.01 par value; 18,000,000 shares
authorized; issued 4,414,707 and 4,728,993 shares,
outstanding 4,339,707 and 4,728,993 shares,
respectively 44,147 47,290
Capital in excess of par value 7,980,635 7,980,635
Retained earnings 786,197 44,628
Treasury stock, at cost; 75,000 shares in 1999 (146,718) -
----------- -----------
TOTAL SHAREHOLDERS' EQUITY 8,664,261 8,072,553
----------- -----------
$14,064,775 $11,537,169
=========== ===========
See notes to consolidated financial statements.
</TABLE>
F-3
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEAR ENDED MARCH 31,
----------------------------------------------
1999 1998 1997
-------- -------- --------
NET SALES $60,392,370 $42,561,796 $35,372,386
COST OF SALES 47,491,745 34,514,628 29,087,860
----------- ----------- -----------
GROSS PROFIT 12,900,625 8,047,168 6,284,526
OPERATING EXPENSES 10,930,312 6,805,774 5,480,003
----------- ----------- -----------
OPERATING INCOME 1,970,313 1,241,394 804,523
INTEREST EXPENSE 666,676 322,072 595,592
----------- ----------- -----------
INCOME BEFORE
INCOME TAXES 1,303,637 919,322 208,931
PROVISION FOR INCOME TAXES 562,068 402,165 72,671
----------- ----------- -----------
NET INCOME $ 741,569 $ 517,157 $ 136,260
=========== =========== ===========
NET INCOME PER SHARE:
BASIC $ 0.17 $ 0.11 $ 0.03
=========== =========== ===========
DILUTED $ 0.16 $ 0.09 $ 0.03
=========== =========== ===========
See notes to consolidated financial statements.
F-4
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK CAPITAL IN TREASURY
------------------------- EXCESS OF UNEARNED STOCK, RETAINED
SHARES AMOUNT PAR VALUE COMPENSATION AT COST EARNINGS TOTAL
---------- ---------- --------------- --------------- ------------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE at March 31, 1996 1,979,048 $19,790 $ 804,850 $ (44,000) $ - $457,503 $1,238,143
Issuance of common stock
and warrants 1,290,000 12,900 5,339,143 - - - 5,352,043
Issuance of performance
shares 125,714 1,257 75,963 (77,220) - - -
Conversion of preferred
stock 952,381 9,524 818,506 - - - 828,030
Repurchase of performance
shares (57,143) (571) 271 - - - (300)
Amortization of unearned
compensation - - - 57,594 - - 57,594
Issuance of warrants - - 25,000 - - - 25,000
Net income - - - - - 136,260 136,260
Dividends paid on
preferred stock - - - - - (175,000) (175,000)
------------ ------------ --------------- ------------- ---------- ------------- ----------
BALANCE at March 31, 1997 4,290,000 42,900 7,063,733 (63,626) - 418,763 7,461,770
Amortization of unearned
compensation - - - 63,626 - - 63,626
Common stock dividend 428,993 4,290 887,002 - - (891,292) -
Exercise of stock options 10,000 100 29,900 - - - 30,000
Net income - - - - - 517,157 517,157
------------ ------------ --------------- ------------- ---------- ------------- ----------
BALANCE at March 31, 1998 4,728,993 47,290 7,980,635 - - 44,628 8,072,553
Repurchase of stock (75,000) - - - (146,718) - (146,718)
Repurchase of performance
shares (314,286) (3,143) - - - - (3,143)
Net income - - - - - 741,569 741,569
------------ ------------ --------------- ------------- ---------- ------------- ----------
BALANCE at March 31, 1999 4,339,707 $ 44,147 $ 7,980,635 $ - $ (146,718) $ 786,197 $8,664,261
============ ============ =============== ============= ========== ============= ==========
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
-------------------------------------------------
1999 1998 1997
---------------- --------------- ---------------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $ 741,569 $ 517,157 $ 136,260
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 251,404 168,292 166,436
Deferred income taxes 19,000 (37,000) 24,000
Amortization of debt discount - - 104,167
Write-off of note receivable 35,760 - -
Changes in assets and liabilities:
Receivables 4,157,368 514,152 (2,853,753)
Inventories (4,576,757) (2,255,172) (850,778)
Advances to suppliers and others (371,072) (27,051) (87,338)
Prepaid expenses and other (211,832) (13,789) (127,723)
Income taxes (193,492) 488,634 (339,989)
Accounts payable and accrued liabilities 1,224,753 620,491 (37,594)
----------- ---------- ----------
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES 1,076,701 (24,286) (3,866,312)
----------- ---------- ----------
INVESTING ACTIVITIES:
Acquisition of business (630,209) - -
Capital expenditures (127,085) (361,514) (143,374)
Security deposits and other (37,689) (18,515) (54,488)
Issuance of notes receivable (135,754) (304,900) -
Repayment of notes receivable 113,169 152,083 -
----------- ---------- ----------
NET CASH USED IN INVESTING ACTIVITIES (817,568) (532,846) (197,862)
----------- ---------- ----------
FINANCING ACTIVITIES:
Issuance of common stock, net of offering costs - - 5,352,043
Exercise of stock options - 30,000 -
Repayment of notes payable - - (1,000,000)
Proceeds from issuance of units - - 500,000
Principal payments on equipment notes payable (74,402) (14,592) (8,203)
Repurchase of stock (146,718) - -
Repurchase of performance shares (3,143) - (300)
Offering costs (preferred stock and units) - - (57,297)
Dividends paid - - (175,000)
----------- ---------- ----------
NET CASH (USED IN) PROVIDED BY FINANCING ACTIVITIES (224,263) 15,408 4,611,243
----------- ---------- ----------
NET INCREASE (DECREASE) IN CASH 34,870 (541,724) 547,069
CASH at beginning 6,595 548,319 1,250
----------- ---------- ----------
CASH at end $ 41,465 $ 6,595 $ 548,319
=========== ========== ==========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Interest paid $ 666,676 $ 322,072 $ 595,592
=========== ========== ==========
Income taxes paid $ 726,942 $ 50,335 $ 391,018
=========== ========== ==========
NONCASH TRANSACTIONS:
Capital lease obligations for the acquisition of
equipment $ 933,039 $ - $ 32,325
=========== ========== ==========
Issuance of performance shares $ - $ - $ 77,220
=========== ========== ==========
Conversion of Series A Convertible Preferred Stock to
Common Stock $ - $ - $ 828,030
=========== ========== ==========
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. THE COMPANY AND ITS SIGNIFICANT ACCOUNTING PRINCIPLES
Business:
The Company designs, manufactures (through contractors) and imports
women's and children's sportswear and other apparel for the domestic
retail market.
Principles of Consolidation:
The consolidated financial statements include the accounts of Jenna
Lane, Inc. and its wholly-owned subsidiaries (collectively, the
"Company"). All significant intercompany accounts and transactions have
been eliminated.
Inventories:
Inventories are stated at the lower of cost (first-in, first-out)
or market.
Income Taxes:
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for
financial reporting purposes and amounts used for income tax purposes,
primarily depreciation, inventory costs capitalized and, in 1998 and
1997, deferred compensation.
Property and Equipment:
Property and equipment are stated at cost. Furniture and equipment are
depreciated using the straight-line method over their estimated useful
lives of five years. Leasehold improvements are amortized over their
respective lives or the terms of the applicable leases, whichever is
shorter.
Goodwill:
The excess of the cost over the fair value of net assets of purchased
businesses is recorded as goodwill (included in other assets) and is
amortized on a straight-line basis over the estimated future periods to
be benefited (not exceeding 40 years). The Company continually evaluates
the recoverability of this goodwill.
Stock-Based Compensation Plans:
Effective April 1, 1996, the Company adopted Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation"
("SFAS No. 123"). SFAS No. 123 permits either the recognition of
compensation cost for the estimated fair value of employee stock-based
compensation arrangements on the date of grant, or disclosure in the
notes to the financial statements of the pro forma effects on net income
and earnings per share, determined as if the fair value-based method had
been applied in measuring compensation cost. The Company has adopted the
disclosure option and continues to apply APB Opinion No. 25, "Accounting
for Stock Issued to Employees" ("APB 25") in accounting for its plans.
Accordingly, no compensation cost has been recognized for the Company's
stock incentive plan.
F-7
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. THE COMPANY AND ITS SIGNIFICANT ACCOUNTING PRINCIPLES (CONTINUED)
Earnings Per Share:
The Company computes basic and diluted earnings per share in accordance
with Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS
128"), which the Company adopted as of December 31, 1997. Basic earnings
per share is computed based upon the weighted average number of
outstanding common shares. Diluted earnings per share include the
weighted average effect of dilutive options, warrants and convertible
preferred stock. In 1999, the warrants were anti-dilutive. In 1997, the
convertible preferred shares were anti-dilutive. In conjunction with the
issuance of SFAS 128, the Company adopted Securities and Exchange
Commission Staff Accounting Bulleting No. 98 ("SAB 98"). As a result,
certain securities which had previously been classified as and included
in common shares outstanding, pursuant to SAB 83, are no longer required
to be included as common shares outstanding. Accordingly, the 1997
earnings per share computations have been restated.
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31
-----------------------------------------------------
1999 1998 1997
-------------- --------------- --------------
<S> <C> <C> <C>
BASIC EARNINGS PER SHARE COMPUTATION
Numerator:
Net income $ 741,569 $ 517,157 $ 136,260
Preferred dividends - - 75,000
-------------- --------------- ---------------
Net income applicable to common shares $ 741,569 $ 517,157 $ 61,260
=============== ============== ===============
Denominator:
Average common shares outstanding 4,445,624 4,719,322 2,305,749
=============== ============== ===============
BASIC EARNINGS PER SHARE $ 0.17 $ 0.11 $ 0.03
=============== ============== ===============
DILUTED EARNINGS PER SHARE COMPUTATION
Numerator:
Net income applicable to common shares $ 741,569 $ 517,157 $ 61,260
============== ============== ===============
Denominator:
Average common shares outstanding 4,445,624 4,719,322 2,305,749
Dilutive effect of:
Options 85,198 185,125 27,485
Warrants - 627,412 -
-------------- -------------- ---------------
Total average common shares outstanding 4,530,822 5,531,859 2,333,234
-------------- -------------- ---------------
DILUTED EARNINGS PER SHARE $ 0.16 $ 0.09 $ 0.03
=============== ============== ===============
</TABLE>
Stock Dividends:
On February 17, 1998, the Company declared a 10% stock dividend paid
March 13, 1998 to shareholders of record as of March 6, 1998. The stock
price on the date of declaration was $9.625. The fair value of the
dividend has been charged against retained earnings only to the extent
of retained earnings and current income as of the date of distribution.
In July 1996, the Company declared a 1.9047619 for one stock split of
the Common Stock to be effected in the form of a stock dividend. All
share and per share data have been restated in these financial
statements for all periods presented to reflect the stock dividend and
stock split.
F-8
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. THE COMPANY AND ITS SIGNIFICANT ACCOUNTING PRINCIPLES (CONTINUED)
Advertising costs:
The Company expenses advertising costs as incurred which amounted to
approximately $118,000, $68,000 and $15,000 for the years ended March
31, 1999, 1998 and 1997, respectively.
Use of Estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements
and accompanying notes. Although these estimates are based on
management's knowledge of current events and actions it may undertake in
the future, they may ultimately differ from actual results.
Segment Information:
Effective April 1, 1998, the Company adopted Statement of Financial
Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" ("SFAS 131"). SFAS 131 superseded
FASB Statement No. 14, "Financial Reporting for Segments of a Business
Enterprise". SFAS 131 establishes standards for the way that public
business enterprises report information about operating segments in
annual financial statements and requires that those enterprises report
selected information about operating segments in interim financial
reports. SFAS 131 also establishes standards for related disclosures
about products and services, geographic areas, and major customers.
The Company has organized its business in one operating segment, since
the Company's only business is in the sale of apparel to the domestic
retail market.
Recent Accounting Pronouncements:
In June 1998, the Financial Accounting Standards Board issued the
Statement of Financial Accounting Standards No. 133 ("SFAS 133"),
"Accounting for Derivative Instruments and Hedging Activities", which
will be effective for the Company's fiscal year 2000. This statement
establishes accounting and reporting standards requiring that every
derivative instrument be recorded in the balance sheet as either an
asset or liability measured at its fair value. The statement also
requires that changes in the derivative's fair value be recognized in
earnings unless specific hedge accounting criteria are met. The Company
is not currently affected by SFAS 133.
Reclassification:
Certain prior year amounts have been reclassified to conform with the
current year's presentation.
F-9
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. RECEIVABLES
Receivables consist of the following:
MARCH 31,
-------------------------------
1999 1998
------------- --------------
Due from factors $ 953,326 $ 4,919,310
Non-factored receivables 365,616 81,000
Less: allowance for customers' claims (1,036,000) (560,000)
------------- --------------
$ 282,942 $ 4,440,310
============= ==============
The Company has agreements with two commercial factors which provide for
the factoring of substantially all its trade accounts receivable on a
pre-approved non-recourse basis (except as to customer claims). The
factoring charge ranges from 0.65% to 0.85% of the receivables assigned.
Factor charges for the years ended March 31, 1999, 1998 and 1997 were
approximately $598,000, $427,000 and $472,000, respectively. The
uncollected balance of receivables held by the factors amounted to
approximately $16,455,000 and $9,489,000 at March 31, 1999 and 1998,
respectively.
The Company receives advances and loans under the agreement with its
primary factor, which bear interest at 1.0% below the prime rate. The
factor also guarantees the Company's letters of credit. The aggregate
amounts of such advances and guarantees are limited by formula and any
overadvance permitted is at the lender's discretion. Substantially all
the Company's assets are pledged as collateral under the agreements.
3. INVENTORIES
Inventories consist of the following:
MARCH 31,
-------------------------------
1999 1998
------------- -------------
Raw materials $ 2,921,489 $ 2,308,517
Work-in-process 1,612,193 368,954
Finished goods 5,931,160 3,210,614
--------------- --------------
$ 10,464,842 $ 5,888,085
=============== ==============
4. PROPERTY AND EQUIPMENT
Property and equipment consist of:
MARCH 31,
-------------------------------
1999 1998
------------- -------------
Furniture and equipment $ 1,346,085 $ 543,387
Leasehold improvements 378,288 120,862
------------ -------------
1,724,373 664,249
Less: Accumulated depreciation and
amortization 414,036 162,632
------------ -------------
$ 1,310,337 $ 501,617
============ =============
F-10
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
5. LONG-TERM DEBT
Long-term debt consists of capital lease obligations for equipment
payable in monthly installments, with interest ranging from 9.96% to
11.6%, maturing through fiscal year 2004. Annual maturities of long-term
debt at March 31, 1999 are as follows:
YEAR ENDING MARCH 31,
---------------------
2001 $ 200,148
2002 157,178
2003 173,862
2004 159,275
----------
$ 690,463
==========
6. INCOME TAXES
The provision for income taxes consists of the following:
<TABLE>
<CAPTION>
MARCH 31,
-------------------------------------------------------
1999 1998 1997
---------------- ------------ --------------
<S> <C> <C> <C>
Current:
Federal $ 438,595 $ 337,335 $ 22,970
State 104,473 101,830 25,701
Deferred 19,000 (37,000) 24,000
---------- ----------- -------------
$ 562,068 $ 402,165 $ 72,671
========== =========== =============
</TABLE>
Reconciliation of the statutory Federal income tax rate to the Company's
effective tax rate is as follows:
<TABLE>
<CAPTION>
MARCH 31,
----------------------------------------------------
1999 1998 1997
------------------ ---------------- --------------
<S> <C> <C> <C>
Statutory Federal income tax rate 34.0% 34.0% 34.0%
State income taxes, net of Federal benefit 5.3 7.3 8.1
Other 3.8 2.5 (7.3)
------------- ---------- -------------
Effective income tax rate 43.1% 43.8% 34.8%
============= ========== =============
</TABLE>
Significant components of the Company's deferred
tax assets and liabilities as of March 31, 1999
and 1998 are summarized as follows:
<TABLE>
<CAPTION>
MARCH 31,
-------------------------------
1999 1998
------------- ------------
<S> <C> <C>
Current deferred tax asset - inventory $ 70,000 $ 43,000
============= ==============
Noncurrent deferred tax liability - depreciation $ 76,000 $ 30,000
============= ==============
</TABLE>
F-11
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
7. SHAREHOLDERS' EQUITY
Initial Public Offering:
In March 1997, the Company completed an initial public offering of
690,000 units, at a public offering price of $10.125 per unit. Each unit
consisted of two shares of common stock and one warrant. Each warrant
entitles the holder to purchase one share of common stock at an exercise
price of $6.36, subject to adjustment, at any time until March 2000. The
net proceeds from the offering of approximately $5,352,000 were used to
repay debt, acquire equipment and for general corporate purposes.
Series A Convertible Preferred Stock:
The Series A Convertible Preferred Stock was converted in March 1997
into common shares effective with the completion of the Company's
initial public offering of common stock.
In April 1996, the Company declared and paid an annual dividend of $.20
per share ($100,000) to the shareholders of preferred stock. In June
1996, October 1996 and January 1997, the Company declared and paid a
quarterly dividend of $25,000 to the shareholders of preferred stock.
Issuance of Notes and Warrants:
In August, 1996, the Company completed a bridge financing by issuing
$500,000 (principal amount) 10% notes and 1,100,000 warrants. The Bridge
Notes were repaid in March 1997 from the proceeds of the Company's
initial public offering. The warrants to purchase 1,100,000 shares of
common stock at an exercise price of $6.36 per share, subject to
adjustment, are exercisable for a period of three years. The warrants
contain various redemption and other provisions.
Stock Repurchase:
In September 1998, the Company adopted a share repurchase program to buy
back up to 500,000 shares of the Company's stock over an eighteen month
period. As of March 31, 1999, the Company has repurchased 75,000 shares
at an aggregate cost of $146,718.
Performance Shares:
Performance shares represent common shares issued as compensation to
certain key executives and a director. Unearned compensation was
recorded based on the fair value of the shares issued and has been fully
amortized through March 1998. Amortization of unearned compensation was
$64,000 and $58,000 for the years ended March 31, 1998 and 1997,
respectively.
The shares are to be repurchased by the Company at par value ($.01 per
share) because the Company did not achieve certain annual pre-tax
earnings in fiscal 1998 and 1999. 314,286 shares were repurchased in
1999, and an additional 314,286 shares are to be repurchased subsequent
to March 31, 1999.
F-12
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
8. COMMITMENTS AND CONTINGENCIES
Leases:
The Company leases warehouse, office and showroom space and equipment
under capital and operating leases extending to 2006. The leases provide
for payment by the Company of taxes and other expenses. Rent expense was
approximately $862,000, $461,000 and $358,000 for the years ended March
31, 1999, 1998 and 1997, respectively.
Minimum rental payments under noncancellable leases are as follows:
<TABLE>
<CAPTION>
YEAR ENDING MARCH 31, OPERATING CAPITAL
--------------------- ------------- -----------
<S> <C> <C>
2000 $ 1,244,000 $ 264,000
2001 1,225,000 261,000
2002 1,017,000 233,000
2003 983,000 196,000
2004 928,000 129,000
Thereafter 1,463,000 -
------------- ----------
$ 6,860,000 1,083,000
============
Less: Amount representing interest 208,000
----------
$ 875,000
==========
</TABLE>
Net book value of equipment under capital leases included in the balance
sheet amounted to approximately $863,000 and $29,000 at March 31, 1999
and 1998, respectively.
Employment Agreements:
The Company has executed employment agreements with several of its
executives and employees which, among other things, provide for
aggregate annual base compensation of approximately $1.6 million for
fiscal 2000 and minimum bonuses plus profit participation, as defined.
Letters of Credit:
At March 31, 1999, the Company was contingently liable for open letters
of credit aggregating approximately $2,285,000.
F-13
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
8. COMMITMENTS AND CONTINGENCIES (Continued)
Licensing Agreements:
The Company has entered into licensing agreements that provide for
royalty payments ranging from 5% to 7% of net sales of licensed
products. Based on minimum sales requirements, future minimum royalty
payments required under these agreements are:
YEAR ENDING MARCH 31,
---------------------
2000 $ 275,000
2001 672,000
2002 956,000
2003 228,000
-----------
$ 2,131,000
===========
The Company incurred royalty expense of $79,000 for the year ended March
31, 1999. As a result of pending litigation with one licensor, minimum
guaranteed royalties of $120,000 due in January 1999 are in dispute and
remain unpaid. Future minimum guaranteed royalties of $450,000 that are
also in dispute are included above (see litigation note below).
Litigation:
The Company is a party to litigation with one of its licensors and
certain other parties. The Company initiated an action alleging breach
of license and related tort claims. The licensor has moved to compel
arbitration and is seeking $1,000,000 in damages, including unpaid
minimum guaranteed royalties. The Company is vigorously defending the
claim and believes it has meritorious defenses. However, it is not
possible at this time to predict the outcome of this matter.
9. SALES TO MAJOR CUSTOMERS
For the year ended March 31, 1999, one customer accounted for
approximately 23% and another accounted for 11% of sales compared to one
customer that accounted for approximately 18% for the year ended March
31, 1998.
10. STOCK INCENTIVE PLAN
In August 1996, the Company adopted an Incentive Stock Option Plan for
employees (the Plan). The Plan permits the issuance of stock options to
selected employees (and consultants) of the Company. The Company
reserved 660,000 shares of common stock for grant. Options granted may
be either nonqualified or incentive stock options and will expire not
later than 10 years from the date of grant.
F-14
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
10. STOCK INCENTIVE PLAN (Continued)
The following table summarizes stock option activity for the three years
ended March 31, 1999 (including 450,582 stock options issued outside the
Plan):
NUMBER OF WEIGHTED
SHARES SUBJECT AVERAGE EXERCISE
STOCK OPTION ACTIVITY TO OPTIONS PRICE PER SHARE
--------------------------- -------------- -----------------
Outstanding, April 1, 1996 - $ -
Granted 327,241 3.94
Exercised - -
--------------
Outstanding, March 31, 1997 327,241 3.94
Granted - -
Exercised (10,000) 3.00
--------------
Outstanding, March 31, 1998 317,241 3.98
Granted 686,500 3.06
Cancelled (34,240) 4.03
Exercised - -
--------------
Outstanding, March 31, 1999 969,501 3.33
==============
The following table summarizes information about stock options
outstanding and exercisable at March 31, 1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------------------------------------- ------------------------------
WEIGHTED WEIGHTED WEIGHTED
RANGE OF AVERAGE AVERAGE AVERAGE
EXERCISE REMAINING EXERCISE EXERCISE
PRICE NUMBER OF CONTRACTUAL PRICE NUMBER OF PRICE
PER SHARE SHARES LIFE (YEARS) PER SHARE SHARES PER SHARE
------------ -------- ------------ ---------- --------- ----------
<S> <C> <C> <C> <C> <C>
$1.82 - 2.73 517,750 9.1 $2.13 100,000 $ 2.73
$4.00 - 4.55 376,751 8.4 4.30 138,418 4.55
$6.00 - 8.00 75,000 9.3 6.67 - -
-------- ------- ------ --------- ------
969,501 8.8 $3.33 238,418 $ 3.79
======== ======= ====== ========== ======
</TABLE>
F-15
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
10. STOCK INCENTIVE PLAN (Continued)
The following table reflects pro forma net income and earnings per share
had compensation cost been determined based on the fair value at the
grant date for awards granted in fiscal 1999, 1998, and 1997 consistent
with the requirements of Statement of Financial Accounting Standards No.
123, "Accounting for Stock-Based Compensation":
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31, 1999 1998 1997
-------------------- ------------- ------------- --------
<S> <C> <C> <C>
NET INCOME:
As reported $ 741,569 $ 517,157 $ 136,260
Pro forma $ 617,103 $ 436,561 $ 121,738
BASIC EARNINGS PER SHARE:
As reported $ 0.17 $ 0.11 $ 0.03
Pro forma $ 0.14 $ 0.09 $ 0.02
DILUTED EARNINGS PER SHARE:
As reported $ 0.16 $ 0.09 $ 0.03
Pro forma $ 0.14 $ 0.08 $ 0.02
</TABLE>
These pro forma amounts may not be representative of future disclosures
since the estimated fair value of stock options is amortized to expense
over the vesting period, and additional options may be granted in future
years.
The estimated fair value of each option granted included in the pro
forma results is calculated using the minimum value calculation for the
options issued prior to the Company going public, and the Black-Scholes
option-pricing model with the following weighted-average assumptions
used for grants in 1999 and 1997, respectively: no common stock
dividends paid for all years; expected volatility of 65.0% and 23.5%;
risk-free interest rates of 5.11% and 6.12%; and expected lives of 5.0
and 3.5 years. The weighted average fair values of options at their
grant date during 1999 and 1997, were $0.95 and $1.01, respectively.
11. 401(K) PLAN
Effective August 1996, the Company established a qualified Salary
Reduction Profit Sharing Plan ("The Plan") for eligible employees under
Section 401(k) of the Internal Revenue Code. The Plan provides for
voluntary employee contributions through salary reduction and voluntary
employer contributions at the discretion of the Company. There were no
Company contributions for the years ended March 31, 1999, 1998 and 1997.
12. ACQUISITION
On June 19, 1998, the Company acquired substantially all the assets of
T.L.C. for Girls, Inc., a manufacturer of children's wear, for a total
consideration of approximately $630,000 which has been accounted for as
a purchase and consisted substantially of goodwill. The pro forma
results for 1999 assuming the acquisition had been made at the beginning
of the year, would not be materially different from reported results.
F-16
<PAGE>
JENNA LANE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
13. QUARTERLY FINANCIAL DATA (UNAUDITED)
The following table presents summarized quarterly results:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
----------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
MARCH 31, 1999
--------------
Net Sales $13,826,800 $17,120,399 $9,253,459 $20,191,712
Gross Profit 2,728,127 3,617,024 1,896,864 4,658,610
Operating Income (Loss) 713,504 806,038 (566,998) 1,017,769
Net Income (Loss) 368,809 348,468 (394,837) 419,129
Earnings Per Share:
Basic 0.08 0.08 (0.09) 0.10
Diluted 0.08 0.08 (0.09) 0.10
Market Price Per Share:
High 8.50 2.94 2.25 2.69
Low 1.75 1.53 1.03 1.88
MARCH 31, 1998
--------------
Net Sales $11,734,842 $11,295,038 $7,723,861 $11,808,055
Gross Profit 2,303,059 2,119,719 1,249,749 2,374,641
Operating Income (Loss) 412,048 638,870 (387,434) 577,910
Net Income (Loss) 213,493 322,268 (286,374) 267,770
Earnings Per Share:
Basic 0.05 0.07 (0.09) 0.06
Diluted 0.04 0.06 (0.09) 0.05
Market Price Per Share:
High 9.43 9.77 12.39 11.25
Low 7.73 8.75 9.66 8.69
</TABLE>
F-17
EXHIBIT 10.21
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is dated as of April 19,
1999, and is entered into by and between ANDREW MILLER, with an address at 27
Reynolds Lane, Katonah, New York 10536 ("Miller") and Jenna Lane, Inc., a
Delaware corporation with offices located at 1407 Broadway, New York, New York
10018 (the "Company").
1. TERMINATION OF EMPLOYMENT AND EMPLOYMENT AGREEMENT. On June 8,
1998, Miller and Jenna Lane, Inc. entered into an employment agreement (the
"Employment Agreement"). Miller and the Company hereby agree and acknowledge
that Miller's employment with the Company shall terminate effective as of June
30, 1999 (the "Effective Date"). Except as otherwise expressly set forth herein,
the parties hereto agree that the rights and obligations of both Miller and the
Company arising under the Employment Agreement shall terminate and be of no
further force and effect as of the date hereof, except as expressly provided
herein, it being agreed upon that the benefits hereunder are a material
inducement to Miller to enter into this Separation Agreement.
2. RELEASE. In consideration of the benefits set forth in Section
3 below, the release described in Section 4 and other accommodations made to
Miller, Miller hereby releases, waives, discharges and gives up any and all
rights which Miller may have against the Company arising (a) out of Miller's
employment with the Company, or any position held by him, including his position
as an officer of the Company, or termination therefrom or the circumstances
related thereto or (b) by reason of any other manner, cause or thing whatsoever
to the date of Miller's execution and delivery of this Agreement, except to the
extent the rights or obligations continue pursuant to this Agreement. Nothing in
this Agreement shall preclude Miller from exercising his rights with respect to
the vested stock options in the Company issued to Miller during the course of
his employment, as more fully described in Section 5 below.
3. BENEFITS. As consideration for entering into this Agreement,
and for continuing to serve as President of the Company on a substantially
full-time basis from the date hereof through and including the Effective Date,
Miller shall receive, or have the use of, as the case may be, the following
benefits:
A. Commencing as of the date hereof and continuing until the
earlier of (1) July 31, 1999, or (2) Miller's securing and commencing full time
employment of his choosing, Miller shall be paid by the Company (I) a base
salary equal to $4,000.00 per week and (II) an expense allowance equal to $4,000
per month;
B. The lease on the Lexus RX 300 automobile is currently in
Miller's name and the Company reimburses Miller for all lease payments. This
arrangement will continue until the Effective Date, at which time Miller shall
surrender the car to the Company, which shall remove Miller's name from the
lease and assume, or have one of its employees, officers or directors assume,
all obligations and liabilities thereunder, including all monthly lease
payments, payment of insurance and any and all costs and expenses of returning
the vehicle at the end of the lease. If the lease is unable to be assumed, the
Company shall purchase the vehicle from Miller for $36,000.
C. The Company shall continue to provide Miller and his dependents
(spouse and children only) with one hundred percent (100%) of the cost of health
insurance for a period equal to the earlier of (1) September 30, 1999 or (2)
Miller's securing and commencing full time employment of his choosing.
31
<PAGE>
D. Miller shall retain his computer, scanner and printer currently
located in his home, on condition that all information and data thereon
pertaining to the Company is returned to the Company as of the Effective Date,
and no copies of same shall be retained or otherwise used by Miller;
E. At any time prior to the Effective Date, Miller shall be
permitted to take a one week paid vacation.
4. RELEASE BY COMPANY. As additional consideration for entering
into this Agreement, the Company hereby releases, waives, discharges and gives
up any and all rights which it may have against Miller arising (a) out of
Miller's employment with the Company or any position held by him, including his
position as an officer of the Company, or termination therefrom, or the
circumstances related thereto or (b) by reason of any other manner, cause or
thing whatsoever to the date of Miller's execution and delivery of this
Agreement.
5. PAYMENT OF COMPENSATION AND BENEFITS UNDER EMPLOYMENT
AGREEMENT. The Company shall reimburse Miller for all documented expenses
incurred through the Effective Date. The Company and Miller acknowledge that, in
accordance with Paragraph 2 (b) of the Employment Agreement, Miller has the
right to exercise a total of 100,000 Options (as defined in the Employment
Agreement) in accordance with the schedule set forth therein. All rights of
Miller in any options pursuant to the Employment Agreement, whether vested or
not, shall continue to apply to all 100,000 Options, in accordance with the
Stock Option Certificate and Agreement, a copy of which is attached hereto as
Exhibit A.
6. RESTRICTIVE COVENANT. It is understood and agreed that the
restrictive covenants described in Paragraph 5 (b) of the Employment Agreement
shall terminate and be of no further force and effect as of the Effective Date.
The above notwithstanding, and provided that the Company is not in material
default under this Agreement, the restrictions imposed on Miller pursuant to
Paragraph 5(a) and 5(c) shall continue to be in full force and effect, and
breach of same shall constitute a material default under this Agreement.
7. RESIGNATION FROM OFFICE. As of the Effective Date, Miller
hereby resigns from all positions in the Company including as a President, as an
officer and employee.
8. WHO IS BOUND. The Company and Miller are bound by this
Agreement. Anyone who succeeds to Miller's rights and responsibilities, such as
the executors of Miller's estate, shall hereby be bound, and anyone who succeeds
to the Company's rights and responsibilities, such as successors and assigns,
are also bound.
9. CONSTRUCTION OF AGREEMENT. In the event that one or more of the
provisions contained in this Agreement shall for any reason be held
unenforceable in any respect under the law of any State of the United States,
such unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall then be construed as if such unenforceable provision or
provisions had never been contained herein. This Agreement shall be governed
under the laws of the State of New York, without reference to choice of laws or
rules.
10. a. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled exclusively
by final and binding arbitration administered by the American Arbitration
Association in New York City, in accordance with its applicable rules; and
judgment upon the award rendered by the arbitrator may be entered by any court
having jurisdiction thereof. The prevailing party in any such arbitration action
32
<PAGE>
shall have all legal fees and expenses incurred in connection therewith paid for
by the non-prevailing party.
b. NON-DISPARAGEMENT. Both the Company and Miller further
agree not to make any defamatory or derogatory statements concerning one
another. Miller has the right to reasonably approve or disapprove any public
information disseminated by the Company concerning his termination prior to such
dissemination other than an objective description of the terms hereof in any of
the Company's filings with the Securities and Exchange Commission.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have agreed and accepted
this Agreement on the day first above written.
/s/ Andrew Miller
----------------------
ANDREW MILLER
JENNA LANE, INC.
By: /s/ Mitchell Dobies
----------------------
MITCHELL DOBIES, VICE-CHAIRMAN
33
<PAGE>
EXHIBIT 10.22
LEASE, dated January 5, 1999, between GETTINGER ASSOCIATES, a limited
partnership, hereinafter referred to as "Landlord," and JENNA LANE INC., a
Delaware Corporation, having its principal place of business at 2559B Route 130
South, Cranbury, New Jersey 08512, hereinafter jointly, severally and
collectively referred to is "Tenant,"
WITNESSETH: The Landlord does hereby lease to Tenant and Tenant does
hereby take from the Landlord, the space(s) designated as Entire 24th Floor,
substantially as outlined in red on the plan(s) attached hereto, on the
twenty-fourth floor of the building known as 1407 BROADWAY, hereinafter referred
to as "the building," in the Borough of Manhattan, City, County and State of New
York, which space, together with all the fixtures and improvements which, at the
commencement of or during the term, are thereto attached, is hereinafter
referred to as "the premises" or "the demised premises," for a term to commence
on August 1,1999, and to end on July 31, 2006, at the annual rental of four
hundred ten thousand four hundred and no/100 ($410,400.00) dollars, which
Tenant agrees to pay in lawful money of the United States of America, in equal
monthly installments in advance on the first day of each month during said term,
at the office of Landlord, except that Tenant shall pay the first monthly
installment on the execution hereof unless this lease (Lease) be a renewal.
The parties hereto, for themselves their heirs, distributed, executors,
administrators, legal representatives, successors and assigns, hereby covenant,
as follows:
1. Tenant shall pay the rent and additional rent as above and
as hereinafter provided.
2. Tenant shall use and occupy the premises for SHOWROOM AND
OFFICE FOR THE SALE (WHOLESALE ONLY) AND DISPLAY OF LADIES WEARING APPAREL, AND
CHILDREN'S WEARING APPAREL,
and the premises shall be used for no other purpose.
3. Tenant for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Lease, nor sublet
or suffer or permit the demised premises or any part thereof, to be used by
others without the prior written consent of Landlord in each instance. The
transfer of a majority of any class of the issued and outstanding capital stock
of any corporate Tenant of this Lease or a majority of the total interest of any
partnership or individual Tenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this Lease. lf this Lease be assigned or if the demised
premises of any part thereof be sublet or occupied by anyone other than Tenant,
Landlord may, after default by Tenant, collect rent, additional rent and other
charges from the assignee, sublessee or occupant, and apply the net amount so
collected to the rent, additional rent or other charges herein provided, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance
<PAGE>
of the assignee, sublessee or occupant as tenant, or a release of Tenant from
the further performance by it of the covenants on its part to be performed
hereunder. The consent by Landlord to an assignment or subletting shall not in
any wise be construed to relieve Tenant, subtenant or any assignee from
obtaining the express consent in writing of Landlord to any further assignment
or subletting. The listing of any name other than that of the Tenant, whether on
the doors of the premises or on the building or floor directories, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
premises, or be deemed to be the written consent of the Landlord mentioned in
this paragraph, it being expressly understood that any such listing is a
privilege extended by the Landlord, revocable at will by written notice to the
Tenant, subtenant or assignee where Landlord has consented in writing to such
subleasing or assignment.
4. The Tenant shall not obstruct or permit the obstruction of
windows, halls, areas, roofs, stairways or entrances to the building, and will
not affix, erect or inscribe any signs, projections, awnings, signals,
lettering, painting or advertisements of any kind to any part of the premises
including the inside or outside of the windows or doors and will not paint the
inside or outside of the windows or doors unless and until the style, size,
color, construction and location thereof have been approved in writing by the
Landlord. The Landlord shall have the right to withdraw such approval at any
time and to require the Tenant to remove any such signs, projections, awnings,
signals, lettering, painting or advertisements without being liable to the
Tenant by reason thereof and to charge the cost of doing so to the Tenant as
additional rent. The Landlord also reserves to itself the sole right to
designate the person, firm or corporation which shall do the work of lettering,
painting and erecting of any and all signs to be affixed to the premises or the
building.
5. Tenant shall make no alterations, changes, repairs,
additions or improvements (structural or non-structural), in or to the demised
premises including any and all mechanical, electrical, air conditioning,
heating, and plumbing systems without Landlord's prior written consent, and then
only by contractors or mechanics approved by Landlord. All such work shall be
done at such times and in such manner as Landlord may designate. Prior to
Tenant's commencing any work in and to the premises as provided in this
paragraph, Tenant shall obtain in writing and deliver to Landlord, written and
unconditional waivers of mechanics, and materialmen's liens from the persons or
parties who are to perform such work and services in the premises, in such form
as may be approved by Landlord. Any mechanic's or other lien filed against the
premises or the building, for work claimed to have been done for or materials
claimed to have been furnished to Tenant, shall be discharged by Tenant within
10 days thereafter at Tenant's expense, by filing the bond required by law. All
work done or required to be done by the Tenant shall be done with union labor
and union made materials only and shall comply in all respects and at all times
with the rules and regulations of all municipal or other authorities having
jurisdiction thereof.
* including the public corridor area leased herein, specifically the walls,
ceiling, floor and elevator doors.
<PAGE>
6. All fixtures, equipment, improvements made and
appurtenances attached to or built into the space or premises at the
commencement of or during the term, whether by the Landlord at its own expense
or at the expense of the Tenant, or by the Tenant, shall be and remain part of
the premises and shall not be removed by the Tenant at any time unless otherwise
expressly provided in this Lease. All electric, plumbing, heating, sprinkling,
telephone, telegraph, communication and radio systems, fixtures and outlets,
partitions, railings, gates, doors, vaults, paneling, molding, shelving,
radiator enclosures, corks, rubber, linoleum and composition floors,
ventilating, silencing, air conditioning and cooling equipment shall be deemed
to be included in such fixtures, equipment, improvements and appurtenances.
Where not built into the space or premises and if furnished by or at the expense
of the Tenant, all removable electric fixtures, carpets, wind deflectors,
electric fans, water coolers, furniture, trade fixtures and business equipment
shall not be deemed to be included in such fixtures, equipment, improvements and
appurtenances, and may be removed by the Tenant upon condition that such removal
does not render any damage to the building or premises and upon condition also
that in the event of any damage the cost of repairing same shall be paid by the
Tenant. All the outside walls of the premises, including corridor walls and the
outside entrance doors to the premises, any balconies, terraces or roofs
adjacent to the premises, and any space in the premises used for shafts, stacks,
pipes, conduits, ducts or other building facilities and systems and the use
thereof, as well as access thereto in and through the premises for the purpose
of operation, maintenance, decoration and repair, are expressly reserved to the
Landlord and the Landlord does not convey any rights to the Tenant therein.
7. Tenant shall take good care of the premises and fixtures
therein and, subject to the provisions of paragraph 5 hereof shall make, as and
when needed, as a result of misuse or neglect by Tenant or Tenant's servants,
employees, agents, visitors, licensees, contractors, guests or invitees all
repairs in and about the demised premises necessary to preserve them in good
order and condition, which repairs shall be in quality and class equal to the
original work. However, Landlord may repair, at the expense of Tenant, all
damage or injury to the demised premises or to the building or to its fixtures,
appurtenances or equipment, done or caused by Tenant or Tenant's servants,
employees, agents, visitors, licensees, contractors, guests or invitees, or
caused by moving property of Tenant in or out of the building, or by
installation or removal of furniture or other property, or resulting from fire,
air-conditioning unit or system short circuits, overflow or leakage of water,
steam, illuminating gas, sewer gas, sewage or odors, or by frost, or by bursting
or leaking of pipes or plumbing works, or gas, or from any other cause, due to
the carelessness, negligence, or improper conduct of Tenant, or Tenant's
servants, employees, agents, visitors, licensees, contractors, guests or
invitees. Except as provided in paragraph 13 hereof, there shall be no allowance
to Tenant for a diminution of rental value, and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to person(s), property
or business arising from the making of any repairs, alterations, additions or
improvements in or to any portion of the building or the premises or in or to
the fixtures, appurtenances or equipment, nor shall there be any liability upon
the Landlord for failure to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
or to the fixtures, appurtenances or equipment. *The Tenant shall and does
hereby indemnify and hold the Landlord harmless and free from all liability for
all injuries suffered by any person(s), and for damages sustained to property,
and for any monies paid out by Landlord in settlement of any claims or
judgements resulting from such damages or injuries, as well as for all expenses
and attorney's fees incurred by Landlord in connection therewith.
*unless the need for such are occasioned by the gross negligence or willful
misconduct of Landlord, its representatives or agents.
<PAGE>
8. Tenant will not clean, nor require, permit, suffer or allow
any window in the premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law or of the rules of the Board of Standards and
Appeals, or of any other board or body having or asserting jurisdiction.
9. Tenant, at Tenant's expense, shall comply with all laws,
orders and regulations of federal, state, county and municipal authorities, and
with any direction of any public officer or officers, pursuant to law, which
shall impose any duty upon Landlord or Tenant arising out of the Tenant's use or
occupancy of the demised premises, and shall not do or permit to be done, any
act or thing upon said premises, which will invalidate or be in conflict with
fire insurance policies covering the building, fixtures and property therein,
and shall not do or permit to be done any act or thing upon said premises which
shall or might subject the Landlord to any liability or responsibility for
injury to any person or persons or to any property by reason of any business or
operation being carried on upon said premises; and shall comply with all rules,
orders, regulations or requirements of the New York Board of Fire Underwriters,
or any other similar body and shall not do or permit anything to be done in or
upon said premises, or bring or keep anything therein, which shall increase the
rate of fire insurance on the building or on property located therein. If by
reason of failure of Tenant to comply with the provisions hereof, or if by
reason of the nature of the Tenant's occupancy, the fire insurance rate shall at
any time be higher than it otherwise would be, then Tenant shall reimburse
Landlord as additional rent hereunder, for that part of all fire insurance
premiums thereafter paid by Landlord, which shall have been charged because of
such violation or because of such occupancy by Tenant, and shall make such
reimbursement upon the first day of the month following such outlay by Landlord.
In any action or proceeding wherein Landlord and Tenant are parties, a schedule
or "make up" of rate for the building or the premises issued by the New York
Fire Insurance Exchange or other body making fire insurance rates for said
premises, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate then applicable to said
premises.
10. This Lease is and shall remain subject and subordinate to
all ground or underlying leases, leasehold mortgages, and mortgages and building
loan mortgages which may now or hereafter affect the real property of which the
demised premises form a part and each and every of the advances which have
heretofore been made or which may hereafter be made thereunder, and to all
renewals, modifications, consolidations, replacements and extensions thereof. In
confirmation of such subordination, Tenant shall execute promptly any
instruments or certificate that Landlord may request. Tenant hereby irrevocably
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such instrument or certificate for and on behalf of Tenant. This clause shall,
nevertheless, be self-operative.
11. Tenant and Tenant's agents, employees, visitors,
licensees, contractors, guests or invitees, shall faithfully comply with the
Rules and Regulations set forth on the back cover of this Lease, and with such
further
<PAGE>
reasonable Rules and Regulations as Landlord at any time may make and
communicate to Tenant, which, in the Landlord's judgment, shall be necessary for
the reputation, safety, care or appearance of the building, or the preservation
of good order therein, or the operation or maintenance of the building, its
equip-equipment, or the more useful occupancy or comfort of the Tenants and
others in the building. Landlord shall not be liable to Tenant for the violation
of any said Rules and Regulations, or the breach of any covenant or condition in
any lease by any other tenant in the building.
12. Landlord or Landlord's agents shall not be liable for
any damage to property entrusted to employees of the building nor for the loss
of any property by theft or otherwise. Landlord or Landlord's agents shall not
be liable for any injury or damage to persons or property resulting from falling
plaster, steam, gas, electricity, water, rain or snow which may leak from any
part of the building or from the pipes, appliances or plumbing works of the
same, or from the street or sub-surface, or from any other place, or by dampness
or any other cause of whatsoever nature, unless caused by or due to the
negligence of Landlord; nor shall Landlord be liable for any such damage caused
by other tenants or persons in the building, or for interference with the light
or other incorporeal hereditaments, or caused by operations in construction of
any public or quasi public work; nor shall Landlord be liable for any latent
defect in the building. Tenant shall reimburse Landlord as additional rent for
all expenses, damages or fines incurred or suffered by Landlord by reason of any
breach, violation or non-performance of any covenant or provision of this Lease
by Tenant, or Tenant's servants, employees, agents, visitors, licensees,
contractors, guests or invitees, or by reason of damage to person or property
caused by moving property in or out of the building, or by the installation or
removal of furniture or other property of or for the Tenant, or by reason of or
arising out of the occupancy or use by Tenant of the premises or of the
building, or from any other cause due to the carelessness, negligence or
improper conduct of the Tenant or the Tenant's servants, employees, agents,
visitors, licensees, contractors, guests or invitees.
13. If the demised premises shall be partially damaged by fire
or other cause without the fault or neglect of Tenant, Tenant's servants,
employees, agents, visitors, licensees, contractors, guests or invitees, the
damages shall be repaired by and at the expense of Landlord and the rent and
additional rent until such repairs shall be made shall be apportioned according
to that part of the premises which is usable by Tenant. No penalty shall accrue
for reasonable delay which may arise by reason of adjustment of fire insurance
on the part of Landlord or Tenant, and for reasonable delay on account of "labor
troubles." or any other cause beyond Landlord's control. But if the demised
premises are totally damaged or are rendered wholly untenantable by fire or
other cause, and the Landlord shall decide not to rebuild the same, or if the
building of which the demised premises are a part shall be so damaged that
Landlord shall decide to demolish it or to rebuild it, then or in any of such
events Landlord may, within ninety (90)days after such fire or other cause, give
Tenant a notice in writing of such decision, and thereupon the term of this
Lease shall expire by lapse of time upon the third day after such notice is
given, and Tenant shall vacate the demised premises and surrender the same to
Landlord. If any such repairs or restorations are not completed within 180 days
of such damage, Tenant may, upon 60 days notice to Landlord, terminate this
Lease with no further obligation to Landlord hereunder.
*provided that all rent payable hereunder shall abate if the demised premises
shall be at least 75% untenantable.
<PAGE>
14. If the entire land and building of which the demised
premises are a part, shall be taken or condemned by any competent authority for
any public or quasi public use or purpose, then and in that event, the term of
this Lease shall cease and terminate from the date when the possession thereof
shall be required for such use or purpose. If any part of the land or the
building of which the demised premises are a part or any part of the demised
premises shall be so acquired or condemned, then and in that event, the term of
this Lease, at the option of the Landlord, on ten (10) days notice by Landlord
to Tenant, shall cease and terminate from the date when possession of the part
so taken shall be required for such use or purpose. In the event that Landlord
shall not elect to terminate this Lease and part of the demised premises shall
be so taken or condemned, the annual rental, additional rent and other charges,
shall be apportioned from the date thereof, *In no event, under any of the
circumstances described herein, shall Tenant have any claim for the value of any
part of the unexpired term of the within Lease or any portion of the demised
premises so taken or condemned and shall not share in any award that may be made
to Landlord or others.
*If more than 50% of the demised premises are so taken, Tenant shall, within 30
days after such taking, have the right to terminate this Lease upon 30 days
notice to Landlord.
15. As long as Tenant is not in default under any of the
covenant of this Lease, Landlord shall, if and insofar as the existing
facilities provide, at Landlord's expense: (a) run elevators on business days
from 8 A. M. to 6 P. M. and in addition on Saturdays from 8 A.M. to 1 P.M. and
also provide one elevator which will be subject to call during all other hours
on business days, Saturdays, Sundays and holidays; (b) furnish on business days
from 8 A. M. to 6 P. M. heat to warm the demised premises when and as required
by law; (c) cause to be kept clean the halls, corridors and public portions of
the building, which are used in common by all tenants. Tenant shall, at Tenant's
expense, keep the demised premises clean and in order, to the satisfaction of
Landlord, and remove its own rubbish. Landlord shall have the sole right to
designate and appoint the person or concern to be employed, at Tenant's expense,
for the removal of Tenant's refuse and rubbish from the building. Landlord
reserves the right to stop service of the heat, elevator, air conditioning,
cooling, plumbing and electric systems, when necessary by reason of accident, or
for repairs, alterations or improvements, including conversion of each and
any of the elevators from manual to automatic, in the judgement of Landlord
desirable or necessary to be made, until such repairs, alterations or
improvements shall have been completed, and shall further have no responsibility
or liability for failure to supply heat, elevator, plumbing, air conditioning,
cooling and electric service, when prevented from so doing by strikes or
accidents or by any cause beyond Landlord's reasonable control, or by orders or
regulations of any federal, state, county or municipal authority or failure of
coal, oil or other suitable fuel supply, or inability by exercise of reasonable
diligence to obtain coal, oil or other suitable fuel. It is expressly understood
and agreed that any covenants on Landlord's part to furnish any service pursuant
to any of the terms or provisions of this Lease or to perform any act or thing
for the benefit of Tenant shall not be deemed breached if Landlord is unable to
perform the same by virtue of a strike or labor trouble or any other cause
whatsoever beyond Landlord's control and Tenant agrees that there shall be no
abatement or reduction of rent in the event that any of said systems or service
should fail to function for the reasons above set forth. If any cessation of
service or failure to supply heat, elevator, plumbing, air conditioning, cooling
or electrical service materially interferes with Tenant's
<PAGE>
business and continues unabated for more than 30 days, Tenant shall, within 30
days after the commencement of such failure, have the right to terminate this
Lease upon 30 days notice to Landlord.
16. Landlord shall have the right to install a separate water
meter or meters for the demised premises or any part thereof and Tenant shall
pay the cost therefor, and if so installed, Tenant shall keep same in repair and
pay the charges made by the municipality for or in respect of the consumption of
water together with sewer rental charges based thereon as and when billed
therefor. If the building or any part thereof be supplied with water through a
meter or meters, the Tenant shall pay to the Landlord, as and when billed
therefor, the Tenant's proportionate part of all such charges together with
sewer rental based on such meter charges, which amount shall be determined by
multiplying the percentage factor set forth in paragraph 33(b) by the total of
the water bills and sewer charges rendered by the municipality or other public
authority from time to time. All water and sewer rental bills submitted by any
public authority shall be conclusive evidence of the amount due. All payments
required to be made by the Tenant under this paragraph shall be deemed
additional rent.
17. Landlord shall furnish Tenant with electric current
(subject to discontinuance as provided herein), at no additional charge except
as may be hereinafter provided in subparagraph (a) hereof and paragraph 33(d),
during business hours on business days, consistent with the normal purposes for
which the demised premises have been leased to Tenant, subject to all the
provisions as may be herein contained.
(a) In the event there is an increase or decrease, as the case
may be, in the rate schedule or rates for the purchase of electric current or
electricity, including demand or energy charges, fuel adjustment rates, service
charges or sales taxes, hereinafter collectively referred to as "electric
consumption and demand charges," from the public utility or other supplier of
electricity to the Landlord, from and after the date hereof, such increase or
decrease shall at Landlord's option, be added to and made a part of, or
subtracted from the annual rental provided for in this Lease, and if this Lease
has not yet commenced, then such increase or decrease shall be added to and made
a part of, or subtracted from the annual rental upon the commencement of the
Lease. The amount of such increase or decrease shall be computed by:
ascertaining the electric consumption and demand charges for the entire building
for the 12 months immediately proceeding the effective date of the increase or
decrease; then ascertaining such electric consumption and demand charges based
upon the new rates and charges; then computing the percentage of increase or
decrease, as the case may be, and multiplying such percentage of increase or
decrease by the difference between the annual rental and the amount set forth in
subdivision (c) below.
(b) Tenant shall make no changes in or additions to the
electrical system, wiring, conduits, switches, fixtures, outlets or any other
electrical equipment in the building or demised premises during the term of this
Lease and any extensions or renewals thereof without first obtaining the written
consent of the Landlord thereto. Tenant shall not, during the term of this
Lease, connect to the risers, feeders, outlets, base receptacles, wiring or
installations constituting Landlord's electrical distribution system, any
electrical machinery, electrical equipment, electrical computers
<PAGE>
or any other office or electrical appliances without first obtaining the written
consent of the Landlord thereto, Tenant further agrees not to permit, at anytime
during the term of this Lease, its electrical consumption to overtax the
capacity of Landlord's existing electrical distribution system.
(c) The Landlord may discontinue the supply of electric
current to the Tenant, at any time, notwithstanding any contrary provisions of
this Lease, upon giving Tenant thirty (30)days prior written notice of
Landlord's intention so to do and thereupon Tenant may contract or otherwise
arrange with any person, firm or corporation for the purchase and supply of such
electric current, all without affecting or changing the obligations of the
Tenant under this Lease, provided, however, that in the event of the
discontinuance of the electric current by the Landlord, the annual rental shall
be reduced to the sum of $ 376,200.00 and Tenant shall have no further rights
under this Lease with respect thereto. In the event of such discontinuance of
the electric current, Tenant shall have no right to use or utilize Landlord's
electrical distribution system, including it's risers, feeders, wiring or
installations for the supply of Tenant's electric current. Tenant may install,
at its own cost and expense, any risers, feeders, wiring or installations to
enable it to obtain electric current, subject, however, to there being available
space, areas and facilities in the building for the inclusion and insertion of
such risers, feeders, wiring and installations, of which availability Landlord
shall be the sole judge; provided that same shall not cause damage or injury to
the building or the demised premises, or cause or create a dangerous or
hazardous condition, or interfere with or disturb other tenants, or over tax the
capacity of Landlord's existing electrical distribution system, and provided
further that any such work will at all times comply with the laws, rules and
regulations of all governmental bureaus, agencies and other subdivisions having
jurisdiction over the demised premises. The aforesaid risers, feeders, wiring
and installations to be installed by Tenant shall, at all times, be and remain
the property of Landlord.
Rider to be added at the end of paragraph 17 (c) hereof:
"Notwithstanding anything to the contrary contained herein, Landlord agrees it
will not discontinue the supply of electric current to Tenant unless, at the
same time, Landlord disconnects electric to all tenants above the ground floor."
(d) The Landlord agrees to supply electric current to the
Tenant in the manner as herein set forth, to the extent that the quality,
character and quantity of the supply of electric current shall be available to
the Landlord from the public utility company or other supplier supplying the
same and the Landlord and Tenant further agree that Landlord shall not be liable
to the Tenant for any loss, damage or expense resulting from change in the
quality, character or quantity or due to the cessation or interruption of said
supply without any fault on the part of the Landlord, or for Landlord's failure
to supply such electric current when prevented from do doing by strikes,
accidents, repairs, alterations, improvements or other causes beyond Landlord's
control or by orders or laws of any federal, state, county or municipal
authorities, and there shall be no abatement of rent upon the happening and
during the period of such event or events., provided that if any such failure to
supply electric current continues unabated for 30 days, Tenant may, upon 30 days
notice to Landlord, terminate this Lease and have no further obligations to
Landlord hereunder.
<PAGE>
18. The Landlord has installed within the building of which
the demised premises are a part, machinery, appliances, equipment and
appurtenances for the operation and maintenance of a modern peripheral
air-conditioning system which escapable, during the summer time, when the
outside temperature is 95 degrees, of maintaining inside the building a
temperature of approximately 10 degrees less and a proportionately less
difference of temperature between the inside and outside, as the outside
temperature falls to 75 degrees Fahrenheit. The Landlord has provided main
cooling system units at the windows which service the peripheral area and has
installed two or more main ducts and booster units on all floors of the building
as a part of the air-conditioning system.
(a) It is expressly understood by the Tenant that in order for
the air conditioning system to function properly, the Tenant is obliged to, and
the Tenant agrees to keep all windows in the premises closed. Tenant
acknowledges that the air-conditioning system will not function properly if the
demised premises are occupied by more than an average of one person for each 100
sq. ft., or if Tenant installs or operates lighting loads in excess of 3 1/2
watts per sq. ft., or if Tenant installs and operates electrical equipment which
gives off heat that cannot be adequately absorbed by Landlord's existing
air-conditioning system in the demised premises.
(b) Subject always to events and causes, physical, mechanical
and otherwise, beyond the reasonable control of the Landlord, for the failure of
which the Landlord shall not be liable in any event whatever, the Landlord will
service and maintain said air-conditioning system in such matter as to provide
air-conditioning for the premises on business days generally during the hours of
8 A.M. to 6 P. M. during the months of June, July, August and September, when
required, consistent with the provisions hereof. If such failure continues
unabated for 30 days, Tenant may, upon 30 days notice to Landlord, terminate
this Lease and have no further obligations to Landlord hereunder.
(c) Any damage caused to the appliances, equipment or
appurtenances as a result of the negligence of or the careless operation by the
Tenant or the agents, servants, employees, contractors, visitors, guests,
licensees or invitees of the Tenant, shall be repaired by the Landlord at the
cost and expense of the Tenant, which expense shall constitute additional rent.
19. (a) Tenant shall permit Landlord to erect, use and
maintain, pipes and conduits in and through the demised premises. Landlord's
agents shall have the right to enter the demised premises at all times to
examine same, to show them to prospective purchasers or lessees of the building,
and to make such decorations, repairs, alterations, improvements or additions as
Landlord may deem necessary or desirable either to the building or to the
demised premises and Landlord shall be allowed to take all material into and
upon said premises that may be required therefor without the same constituting
an eviction of Tenant in whole or in part and the rent reserved shall in no wise
abate while said decorations, repairs, alterations, improvements or additions
are being made, by reason of loss or interruption of the business of Tenant,
because of the prosecution of any such work or otherwise. If at least 75% of the
demised premises become untenantable for more than 30 days, Tenant may, upon 30
days notice to Landlord, terminate this Lease and have no further obligations to
Landlord hereunder.
<PAGE>
(b) The Tenant shall give prompt notice to the Landlord of any
fire, accident to or defective condition in any part of the demised premises,
including but not limited to the sanitary, electrical, heating, air
conditioning, cooling and other systems located in, or passing through the
premises, and the damage or defective condition shall be remedied by the
Landlord with due diligence, but if such damage or defective condition was
caused by the Tenant or if the system was installed for the particular use of
the Tenant and the damage or defective condition was not caused by the
negligence of the Landlord, the cost of the remedy thereof shall be paid by the
Tenant.
(c) During the six months prior to the expiration of the term
of this Lease, Landlord may exhibit the premises to prospective tenants at all
reasonable hours.
(d) If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's property from the premises,
Landlord may immediately enter and alter, renovate and decorate the premises or
any part thereof without affecting this Lease and without liability to Tenant
for an abatement of rent or other compensation.
(e) Landlord may permit access to the premises without
incurring liability to the Tenant, whether or not the Tenant shall be present,
upon demand of any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshal, court officer or government official entitled to, or
reasonably purporting to be entitled to such access for the purpose of taking
possession of or removing Tenant's property or for any other lawful purpose.
This provision and any action by the Landlord hereunder shall not be deemed a
recognition by Landlord that the person or official making such demand has any
right or interest in or to this Lease or on or to the premises.
(f) Landlord shall have the right to change the arrangement
and location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the building, and after
reasonable notice, to change the name, number or designation by which the
building is commonly known. Nothing herein contained, however, shall be deemed
or construed to impose upon Landlord any obligation, responsibility or liability
whatsoever for the care, supervision or repair of the building or any part
thereof, unless herein otherwise provided.
(g) In the event of a refusal by the Tenant to permit an entry
upon the premises as in this paragraph provided, the Landlord and the Landlord's
agents may forcibly enter the same nevertheless without incurring any liability
by reason thereof.
20. The Tenant shall repair, at its own expense, all damage to
or destruction of any plate or window glass in the demised premises. If the
Tenant fails to repair the damage to any plate or window glass in the demised
premises, then the Landlord may repair said damage or destruction and charge the
cost of such repair to the Tenant and the amount thereof shall be deemed to be
additional rent. Landlord represents that no repairs or replacements to any
plate or window glass contained within the demised premises are or will be
required upon the commencement of
<PAGE>
this Lease, and that all windows which were built to be opened or closed are
able to be opened and closed.
21. No vaults, vault space or space not within the property
line of the building is leased hereunder. anything contained in or indicated on
any sketch, blueprint or plan, or anything elsewhere in this Lease to the
contrary notwithstanding. Landlord makes no representation as to the location of
the property line of the building. All vaults and vault space and all space not
within property line of the building, which Tenant may be permitted to use and
occupy, is to be used and occupied under a revocable license, and if any such
license be revoked, or if the amount of such space be curtailed by any federal,
state or municipal authority, Landlord shall not be subject to any liability nor
shall Tenant be entitled to any compensation or diminution or abatement of rent
nor shall such revocation or curtailment be deemed a constructive or actual,
total or partial eviction.
22. Tenant will not at any time use or occupy the premises in
violation of the certificate of occupancy issued for the building and in the
event that any department of the City or State of New York shall hereafter at
any time contend that the premise are used for a purpose which is a violation of
such certificate of occupancy, in that event Tenant shall, upon 5 days written
notice from Landlord, immediately discontinue such use of said premises. Failure
by Tenant to discontinue such use after such notice shall be considered a
default in the fulfillment of a covenant of this Lease and Landlord shall have
the right to terminate this Lease immediately and in addition thereto shall have
the right to exercise any and all rights and privileges and remedies given to
Landlord pursuant to the provisions of paragraph 25 hereof. The statement in
this Lease of the nature of the business to be conducted by Tenant in the
demised premises shall not be deemed or construed to constitute a representation
or guaranty by Landlord that such business is lawful or permissible under the
certificate of occupancy issued for the building or otherwise permitted by law.
23. If the "sprinkler system" or any of its parts or
appliances shall be damaged or not in proper working order by reason of any act
or omission of Tenant, *Tenant shall forthwith at its own expense restore the
same to good working condition: and if the New York Board of Fire Underwriters
or the New York Fire Insurance Exchange or any bureau, department or official of
the state or city government, require or recommend that any changes,
modifications, alterations or additional sprinkler heads or other equipment, be
made or supplied by reason of Tenant's use of the demised premises as a
commercial office and showroom. Tenant shall, at its expense, promptly make and
supply such changes, modifications, alterations, additional sprinkler heads or
other equipment. *it being agreed that Tenant has no obligation to maintain or
repair such sprinkler system, parts or appliances,
24 (a) If at any time prior to the date herein fixed as the
commencement of the term of this Lease there shall be filed by or against Tenant
in any court pursuant to any statute either of the United States or of any State
a petition in bankruptcy or insolvency, or for reorganization, or for the
appointment of a receiver or trustee of all or a portion of Tenant's property,
or if Tenant makes an assignment for the benefit of creditors, or petitions for
or enters into an arrangement, this Lease shall at the option of the Landlord,
be canceled and terminated in which event neither Tenant nor any person claiming
through or under Tenant by virtue of any statute or order of any court shall be
entitled to
<PAGE>
possession of the demised premises and Landlord, in addition to the other rights
and remedies given by (c)hereof by virtue of any other provision herein or
elsewhere in this Lease contained, or by virture of any statute or rule of law,
may retain as liquidated damages any rent, security, deposit or monies received
by it from Tenant or others in behalf of Tenant.
(b) If at the date fixed as the commencement of the term of
this Lease or if at any time during the term hereof, there shall be filed by or
against Tenant in any court pursuant to any statute either of the United States
or of any State a petition in bankruptcy or insolvency or for reorganization or
for the appointment of a receiver or trustee of all or a portion of Tenant's
property, and within thirty (30) days thereafter Tenant fails to secure a
discharge thereof, or if Tenant makes an assignment for the benefit of creditors
or petitions for or enters into an arrangement, this Lease, at the option of
Landlord, exercised within a reasonable time after notice of the happening of
any one or more of such events, may be cancelled and terminated in which event
neither Tenant nor any person claiming through or under Tenant by virtue of any
statute or order of any court shall be entitled to possession or to remain in
possession of the premises but shall forthwith quit and surrender the premises
and Landlord, in addition to the other rights and remedies Landlord has by
virtue of any other provision herein or elsewhere in this Lease contained, or by
virtue of any statute or rule of law, may retain as liquidated damages, any
rent, security, deposit or monies received from Tenant or others in behalf of
Tenant.
(c) In the event of the termination of this Lease pursuant to
(a) or (b) hereof, Landlord shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rent
reserved hereunder for the unexpired portion of the term demised and the then
fair and reasonable rental value of the demised premises for the same period. In
the computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of two
per cent (2%) per annum. If such premises or any part thereof be re-let by the
Landlord for the unexpired term of this Lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be deemed prima
facie to be the fair and reasonable rental value for the part or the whole of
the premises so re-let during the term of the re-letting. Nothing herein
contained shall limit or prejudice the right of the Landlord to claim and obtain
as liquidated damages by reason of such termination, an amount equal to the
maximum allowed by any statute or rule of law in effect at such time and
governing the proceedings in which such damages are to be proved, whether or not
such amount be greater, equal to or less than the amount of the difference
referred to above.
25. (a) If Tenant shall make default in fulfilling any of the
material covenants of this Lease other than the covenants for the payment of
rent or additional rent and such default shall continue to exist for five days
after written notice thereof by Landlord to Tenant, *or if the premises become
vacant or deserted, Landlord may give Tenant three days notice of intention to
end the term of this Lease and thereupon, at the expiration of said three days
the term under this Lease shall expire as fully and completely as if that day
were the day herein definitely fixed for the expiration of the term, and Tenant
will then quit and surrender the premises to Landlord but Tenant shall remain
liable as hereinafter provided.
*unless Tenant shall be diligently pursuing remedies to cure such default, upon
which Landlord shall provide such additional time as may be reasonably
appropriate
<PAGE>
(b) If the second notice provided for in (a) hereof shall have
been given and the term shall expire as aforesaid; or (1) if Tenant shall make
default in the payment of the rent reserved herein or any item of additional
rent as and when such rent or additional rent becomes due and payable or any
part of either or in making any other payment herein provided; or (2) if any
execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the premises shall be taken or occupied or attempted to be
taken or occupied by someone other than Tenant; or (3) if Tenant shall be in
default with respect to any other lease between Landlord and Tenant; or (4) if
Tenant shall fail to move into or take possession of the premises within fifteen
(15) days after the commencement of the term of this Lease, then, and in any of
such events Landlord may without notice, re-enter the premises either by force
or otherwise, and dispossess Tenant or the legal representatives of Tenant or
other occupant of the premises, by summary proceeding or otherwise, and remove
their effects and hold the premises as if this Lease had not been made and
Tenant hereby waives any notice of intention to re-enter or to institute legal
proceedings to that end. If Tenant shall be in default hereunder prior to the
date fixed as the commencement of any renewal or extension of this Lease then
any renewal, extension or other lease shall, at Landlord's sole option, be
canceled and terminated.
(c) In case of any such default, re-entry, expiration or
dispossess by summary proceedings or otherwise, as provided above: (1) the rent
shall become due thereupon and be paid up to the time thereof together with such
expenses as Landlord may incur for legal expenses, attorneys' fees, brokerage,
and putting the premises in good order and in preparing the same for re-rental;
(2) Landlord may re-let the premises or any part or parts thereof, either in the
name of Landlord or otherwise, for a term or terms which may at Landlord's
option be less than or exceed the period which would otherwise have constituted
the balance of the term of this Lease and may grant concessions or free rent;
(3) Tenant or the legal representatives of Tenant shall also pay Landlord as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between hereby reserved and
convenanted to be paid and the net amount, if any, of the rents collected on
account of the leasing of the premises for each month of the period which would
otherwise have constituted the balance of the term of this Lease. In computing
such liquidated damages there shall be added to the said deficiency such
expenses as Landlord may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage and for keeping the premises in good order
or for preparing the same for re-letting. Any such liquidated damages shall be
paid in monthly installments by Tenant on the rent day specified in this Lease
and any suit brought to collect the amount of the deficiency for any month shall
not prejudice in any way the rights of Landlord to collect the deficiency for
any subsequent month by a similar proceeding. Landlord, at its option, may make
such alterations and decorations in the premises as Landlord in its sole
judgment
<PAGE>
considers advisable and necessary for the purpose of re-letting the premises and
the making of such alterations and decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for failure to re-let the premises, or in
the event that the premises are re-let, for failure to collect the rent thereof
under such re-letting. In the event of a breach or threatened breach by Tenant
of any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
The mention in this lease of any particular remedy, shall not preclude Landlord
from using any other remedy, in law or in equity.
(d) Tenant for itself and on behalf of any and all persons or
parties claiming through or under the Tenant, including creditors, hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Landlord obtaining possession of the demised
premises by reason of the violation by Tenant of any of the covenants and
conditions of this Lease or otherwise.
26. If Tenant shall default in the performance of any
covenant, term or condition on Tenant's part to be performed as in this Lease
contained, Landlord may immediately, or at any time thereafter, without notice,
perform the same for the account of Tenant. If Landlord at any time is compelled
to pay or elects to pay any sum of money, or do any act which will require the
payment of any sum of money, by reason of the failure of Tenant to comply with
any provision hereof, or if Landlord is compelled to or does incur any expense
including reasonable attorneys' fees, instituting, prosecuting or defending any
action or proceeding, whether instituted by Landlord or Tenant, by reason of any
cause whatsoever, including a default of Tenant hereunder, the sum or sums so
paid by Landlord with all interest, costs and damages, shall he deemed to be
additional rent hereunder and shall be due from Tenant to Landlord on the first
day of the month following the incurring of such respective expenses or at the
Landlord's option on the first day of any subsequent month.
27. Landlord or Landlord's agents have made no representations
or promises with respect to the said building or demises premises except as
herein expressly set forth. The taking possession of the premises by Tenant
shall be conclusive evidence, as against Tenant, that the demised premises and
the building were in good and satisfactory condition at the time such possession
was taken. Tenant has inspected the building and the demised premises and is
thoroughly acquainted with their condition and agrees to take same "as is."
28. Upon the expiration or other termination of the term
hereof. Tenant shall quit and surrender to Landlord the premises, broom clean,
in good order and condition, ordinary wear excepted. Tenant shall remove all
property of Tenant as directed by Landlord. If the last day of the term of this
Lease or any renewal thereof falls on Sunday or a legal holiday this Lease shall
expire at l2 noon on the business day immediately proceeding. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the term of this Lease.
<PAGE>
Any personal property of the Tenant or other occupant which shall remain in the
premises or building after the expiration or other termination of the term shall
be deemed to have been abandoned by the Tenant or other occupant and either may
be retained by the Landlord as its property or may be disposed of in such manner
as the Landlord may see fit. If such personal property or any part thereof shall
be sold, the Landlord may receive and retain the proceeds of such sale and apply
the same, at its option, against the expenses of the sale, the cost of moving
and storage, any arrears of rent or additional rent payable hereunder and any
damages to which the Landlord may be entitled under paragraph 25 hereof or
pursuant to law. In the event Landlord shall notify Tenant not later than ninety
(90) days after the expiration or other termination of this Lease, Tenant shall
restore the premises to the condition existing immediately prior to the
commencement of this Lease. Such restoration shall include demolition of walls
and other structures, construction and erection of walls, ceiling, and other
structures, ceiling patching, duct-work, sprinkler-head changes, electric work
and such other alterations, decorations or repairs as may be necessary to
restore the premises to the condition existing immediately prior to the
commencement of this Lease except as previously approved by Landlord.
29. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and performing all the covenants and
conditions aforesaid, on Tenant's part to be observed and performed, Tenant
shall and may peaceably and quietly have, hold and enjoy the demised premises
for the term aforesaid, subject, however, to the terms of this Lease, the ground
and underlying leases, if any, and mortgages herein before mentioned, except
that the provisions hereof shall only apply so long as Landlord or any successor
to Landlord's interest is in possession and is collecting rent from Tenant but
not thereafter.
30. If the Landlord shall be unable to give possession of the
demised premises on the date of the commencement of the term of this Lease, such
failure to give possession shall not in any way affect the obligations of the
Tenant except that the rent and additional rent, reserved and covenanted to be
paid hereunder, shall not commence until possession of the demised premises are
made available for occupancy by the Tenant; nor shall such failure to give or
afford possession be construed in any way to extend the term of this Lease. No
liability whatever shall arise or accrue against the Landlord by reason of its
failure to deliver possession and the Tenant hereby releases and discharges the
Landlord from any claim for damage, loss or injury of every kind whatever, for
such period of time as Landlord may be unable to give or deliver possession of
the demised premises.
Rider to be added at the end of paragraph 30 hereof:
"Permission is hereby given to Tenant to enter into the demised premises prior
to the commencement date of this Lease, or if permission is given to occupy
premises in the Building other than the demised premises hereunder, Landlord and
Tenant covenant and agree that such occupancy shall be deemed to be under all of
the terms, covenants, conditions and provisions of this Lease, except as to the
covenant to pay rent and additional rent. In either case, rent and additional
rent shall commence on the date specified in this Lease."
31. The Landlord expressly reserves the right, upon 10 days'
written notice sent by ordinary mail,
<PAGE>
to recapture that part or portion of the demised premises shown and designated
on the filed plans as a frame for an elevator on the Seventh Avenue side of the
building in which the demised premises are located, and that part or portion of
the demised premises shown or designated on the filed plans as a frame for a
passenger and freight elevator on the Broadway side of the building in which the
demised premises are located, without in any way whatever affecting this Lease
or the term thereof or the rent or additional rent payable hereunder. The
failure of the Tenant to comply with this covenant and to surrender such part or
portion of the demised premises shall constitute a default.
32. The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
Lease, or any of the Rules and Regulations set forth on the inside cover of this
Lease or hereafter adopted by Landlord, shall not prevent a subsequent act,
which would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of rent, additional
rent or other charges, with or without knowledge of the breach of any covenant
or condition of this Lease or the Rules and Regulations, shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the covenants,
conditions or Rules and Regulations against Tenant or any other tenant in the
building shall not be deemed a waiver of any such covenants, conditions or Rules
and Regulations. No provision of this Lease or the Rules and Regulations shall
be deemed to have been waived by Landlord, unless such waiver be in writing
signed by Landlord. No payment by Tenant or receipt by Landlord of any amount,
whether designated by Tenant as rent, past rent, additional rent, tax or
operating expense escalation charges under paragraph 33 or otherwise, shall be
binding upon Landlord and Landlord may apply any such amount, however designated
by Tenant, to rent, past rent, additional rent, tax or operating expense
escalation charges under paragraph 33 or otherwise, as Landlord in its sole
discretion may determine; nor shall any endorsement or statement on any check or
any letter or direction by Tenant or someone on its behalf, whether or not
accompanying any check or payment of any such items or charges, be deemed an
accord and satisfaction or binding upon Landlord, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
any such items or charges or pursue any other remedy provided in this Lease. The
acceptance of payment of any such items or charges by Landlord from any party
other than Tenant, or if such payment is made on behalf of Tenant by any party
other than Tenant, shall not constitute a waiver of the provisions of paragraph
3 respecting the assignment of the Lease or subletting of the premises. If the
term "Tenant" as used herein refers to more than one person, party, corporation,
company or other entity, Landlord may treat any breach of this Lease by one of
such parties as a breach by all.
33. (a) For the purposes of this paragraph, the term "tax
year" shall mean each consecutive 12-month period commencing July 1st, all or
any part of which falls within the term of this Lease; the term "lease year"
shall mean each calendar year, all or any part of which falls within the term of
this Lease. If the first or the final tax year or lease year shall contain less
than 12 months, the additional rent payable under subdivisions (b) and (c) of
this paragraph with respect to such tax years or (d) with respect to such lease
years shall be pro-rated by multiplying such amount by a fraction which has as a
numerator the number of months in such tax or lease year and a denominator of
12.
<PAGE>
(b) In the event that the real estate taxes payable with
respect to the building and the land on which it is located, for any tax year in
which this lease shall be in effect (inclusive of any certiorari fees paid or to
be paid with respect thereto) shall be greater than the amount of such taxes due
and payable for the tax year next preceding the term commencement date
(sometimes hereinafter referred to as "base tax year") whether by reason of an
increase in either the tax rate or the assessed valuation, or by reason of the
levy, assessment or imposition of any tax on real estate as such, not now
levied, assessed or imposed, or for any other reason, Tenant' shall pay to
Landlord, when billed, after the date on which the real estate taxes for such
tax year shall be fixed and determined, as additional rent for the lease year in
which such date occurs, an amount equal to 1.194 % of the difference between the
amount of such tax or installment and the corresponding tax or installment paid
for the base tax year. The base tax year, as referred to in this subparagraph,
notwithstanding anything to the contrary otherwise contained within, shall, for
the purposes hereof, be deemed to mean the tax year 1998/99.
(c) Tenant shall also pay to Landlord, within thirty (30) days
after the same shall be payable by Landlord and as additional rent for the lease
year in which the same shall be so payable, an amount equal to 1.194 % of any
assessment or installment thereof for public betterments or improvements which
may be levied upon the said land and building.
see paragraph 45
34. It is mutually agreed by and between Landlord and Tenant
that the respective parties hereto shall and they, hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in anyway
connected with this Lease, any extension or renewal thereof or the tenant's use
or occupancy of said premises.
35. Tenant shall not ship or receive goods, merchandise or
inventory other than for sample purposes, or use the public corridors of the
building to ship or receive same and Tenant shall not at anytime use any hand
trucks or other wheeled vehicles in the public or other corridors of the
building.
36. Except as otherwise in this Lease provided, any notice,
bill or statement by either party, to the other may be given or sent and shall
be deemed to have been duly given or sent if either delivered personally or
mailed in a post-paid envelope, addressed to the Landlord at 1407 Broadway, New
York, N. Y., and to the Tenant at the premises (or at the Tenant's present
address as above set forth, if mailed prior to the Tenant's occupancy of the
premises), or if any address for notices shall have been truly changed as
hereinafter provided, if mailed to the party at such changed address. Either
party may at any time change the address for notices, bills or statement by
delivering or mailing, as aforesaid, a notice stating the change and setting
forth the changed address.
Should the term "Tenant", as used in this Lease, refer to more than one person,
party, corporation, company or other entity, any notice, bill or statement given
or sent as aforesaid to any one of such entities shall be deemed to have been
<PAGE>
duly given or sent to the Tenant.
37. The Tenant has deposited with the Landlord the sum of
$68,400.00 as security for the performance by the Tenant of the terms of this
Lease. The Landlord may use, apply, or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent and
additional rent or other sum as to which the Tenant is in default in respect of
any of the terms of this Lease, including. but not limited to, any damages or
deficiency in the reletting of the demised premises, whether such damages or
deficiency accrued before or after summary proceedings or other reentry by the
Landlord, including, but not limited to, leasing commissions incurred in
connection with the leasing of the premises and legal or other fees which
Landlord may incur. In the event that the Tenant shall comply with all of the
terms of this Lease, the security shall be returned to the Tenant within 30 days
after the date fixed as the end of the Lease and after delivery of possession of
the demised premises to the Landlord. In the event of a sale or lease of the
premises of which the demised premises forms a part, the Landlord shall have the
right to transfer the security to the vendee or lessee and the Landlord shall
thereupon be released from all liability for the return of such security and the
Tenant shall look solely to the new landlord for the return of such security.
The Tenant shall not assign or encumber the money deposited as security, and
neither the Landlord nor its successors or assigns shall be bound by any such
assignment or encumbrance.
38. The marginal notes are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of this Lease nor in any way affect this Lease.
39. (a) The term "Landlord" as used in this Lease means only
the owner or the mortgagee in possession for the time being, of the land and
building (or the owner of a lease of the building), so that in the event of any
sale or sales of said land and building or of said lease, or in the event of a
lease of said building, or other disposition of said land and building or said
leasehold, the said Landlord shall be and hereby is entirely freed and relieved
of all covenants and obligations of Landlord hereunder, and it shall be deemed
and construed without further agreement between the parties or their successors
in interest, or between the parties and the purchaser, at any, such sale, or the
said lessee of the building, that the purchaser or the lessee of the building
has assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder
(b) The term "business days" shall be construed to mean Monday
to Friday inclusive, excluding holidays.
(c) The words "re-enter" and "re-entry" as used in this Lease
are not restricted to their technical legal meaning.
(d) The term "gross square feet" if and when used herein,
shall be deemed to mean and include all the space taken up by and for stairways,
stairwells, lobbies, elevator shafts, lavatories, washrooms, utilities,
<PAGE>
air-conditioning and mechanical equipment in the building, whether or not all or
any part of such space or equipment is located in the demised premises, the
determination of which, as computed by Landlord, shall be final and conclusive.
(e) The term "additional rent" as used herein, shall be deemed
to mean any and all costs, charges, expenses, adjustments of rent and
electricity which Tenant assumes, agrees or is obligated to pay to Landlord or
others pursuant to the provisions of this Lease or any other agreement, and in
the event of the non-payment thereof, Landlord shall have all of the rights and
remedies with respect thereto as provided for herein or by applicable law in
case of the non-payment of annual rent.
40. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this Lease, their assigns.
41. This Lease contains the entire agreement between the
parties and may not be modified or amended except by an agreement in writing
signed by the parties hereto.
42. The parties herein agree that JAMES BUSLIK & ASSOCIATES
INC. are the only brokers who brought about or had any connection with the
procuring, execution and delivery of this Lease. Landlord agrees to pay any
commission with respect thereto.
43. The riders annexed hereto as paragraphs 44 to 48 are
incorporated herein and made a part of this Lease.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
GETTINGER ASSOCIATES "Landlord"
_________________________________ BY:.............................
GENERAL PARTNER
JENNA LANE INC.
--------------------------------
WITNESS FOR TENANT: Tenant
_________________________________ BY:_______________________(L.S.)
(Title)
__________________________(L.S.)
ACKNOWLEDGMENTS
PARTNERSHIP LANDLORD
STATE OF NEW YORK,
County of New York, ss:
City of New York
On this day of 19 , before me personally came
to me known and known to me to be a member of the firm of GEETINGER ASSOCIATES
and the person described in and who executed the foregoing instrument in the
name of said firm, and he duly acknowledged to me that he executed the same for
and as the act and deed of said firm.
CO-PARTNERSHIP TENANT
STATE OF NEW YORK,
County of New York, SS.:
City of New York
On this day of .19 , before me personally
came to me
known and known to me to be a member of the firm of GEETINGER ASSOCIATES
and the person described in
and who executed the foregoing instrument in the name of said firm, and he duly
acknowledged to me that he executed the same for and as the act and deed of said
firm.
- --------------------------------------------------------------------------------
CORPORATE TENANT
STATE OF NEW YORK,
County of New York, ss:
City of New York
On this day of .19 , before me personally
came to me
known, who being by me duly sworn, did depose and say that he
resides in that he
is the of
the corporation
described in and which executed the foregoing instrument as TENANT; that he
knows the seal of said corporation: that the seal affixed by order of the Board
of Directors of said corporation, and that he signed his name thereto by like
order.
- --------------------------------------------------------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK
County of New York ss:
City of New York
On this Day of ,19 ,before me personally
came to me
known and known to me to be the individual described in and who, as TENANT,
executed the foregoing instrument and acknowledged to me that
be executed the same.
- --------------------------------------------------------------------------------
<PAGE>
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
Landlord making the within Lease with Tenant, the undersigned guarantees to
Landlord's successors and assigns, the full performance and observance of all
the covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of non-payment, non-performance, or non-observance,
or proof, or notice, or demand, whereby to charge the undersigned therefor, all
of which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of the guarantor hereunder shall
in no wise be terminated, affected or impaired by reason of the Landlord's
failure to assert against Tenant any of the rights or remedies reserved to
Landlord pursuant to the provisions of the within Lease. The undersigned further
covenants and agrees that this guaranty shall remain and continue in full force
and effect as to any renewal, modification or extension of the within Lease. As
a further inducement to Landlord to make this Lease and in consideration
thereof, Landlord and the undersigned covenant and agree that in any action or
proceeding brought by either Landlord or the undersigned against the other on
any matters whatsoever arising out of, under, or by virtue of the terms of this
Lease or of this guaranty that Landlord and the undersigned shall and do hereby
waive trial by jury.
Dated, New York City 19 (L.S.)
WITNESS:
_________________________________ Business Address ________________________
Witness:
_________________________________ Business Address ________________________
STATE OF NEW YORK,
County of New York, ss:
City of New York.
On this day of 19 before me personally came
to me known and known to me to be the individual described
in, and who executed the foregoing Guaranty and acknowledged to me that
he executed the same.
- --------------------------------------------------------------------------------
<PAGE>
ADDITIONAL PARAGRAPHS ATTACHED TO AND FORMING A PART OF LEASE DATED JANUARY 5,
1999, BETWEEN GETTINGER ASSOCIATES AND JENNA LANE INC.
44. (a) In the event Tenant desires to assign the Lease or sublet all or part of
the demised premises, Tenant shall first notify Landlord to such effect, in
writing, (hereinafter referred to as "Tenant's Notice") and, if a sublet, shall
specify and indicate such part or parts of the demised premises and, if an
assignment or sublet, the name of the assignee or sublessee, the annual rental,
terms and conditions, including the purchase price if furniture, furnishings or
fixtures are to be sold and conveyed, the commencement date (which shall not be
less than 60 or more than 90 days from the date of the Tenant's Notice) and the
termination date. Landlord or Landlord's nominee shall have the right and
option, to be exercised by giving written notice to Tenant (hereinafter referred
to as "Landlord's Notice") within 60 days after receipt of Tenant's Notice, to
recapture the demised premises or such part thereof as may be described in
Tenant's Notice and Landlord's Notice shall, if given, cancel and terminate the
Lease or Landlord shall assume the obligations thereof with respect to such part
or parts of the demised premises, as of the commencement date specified in
Tenant's Notice. If a part of the demised premises is recaptured, in the manner
as provided herein, the annual rental, additional rent and other charges shall
be apportioned and adjusted in the same ratio that the part of the demised
premises to be occupied by the Tenant (non-recaptured premises) shall bear to
the entire demised premises. The Lease, as modified and amended by the
provisions hereof shall continue in full force and effect.
(b) In the event Landlord shall not exercise its right and option, as
provided in paragraph (a) above, Landlord shall not unreasonably withhold its
consent to an assignment of the Lease or to a subletting of the demised
premises, as set forth in Tenant's Notice, provided that such subletting is for
the entire demised premises to one subtenant only and provided further that such
assignment or subletting complies with the following conditions:
(i) The assignee or sublessee shall be of good reputation and financial
responsibility.
(ii) The assignee shall execute Landlord's form of assignment and
assume all of the terms, covenants and conditions of this Lease and shall agree
not to further assign the Lease or the sublessee shall execute Landlord's form
of Lease and assume all of the terms, covenants and conditions of this Lease.
(iii) Such assignment or subletting shall not release the Tenant from
the due, prompt and punctual performance of all of the terms, covenants and
conditions contained in this lease on its part to be performed and from the
payment of the rents, additional rents and other charges reserved in the Lease.
(iv) The consent of the Landlord to such assigning or subletting shall
not constitute a waiver of the provisions of paragraph 3 hereof and no further
assigning or subletting shall be made by the Tenant, assignee or subtenant
without the Landlord's prior consent in writing as provided in paragraph 3
hereof, notwithstanding anything to the contrary contained in paragraph (b)
hereof.
(v) In the event Landlord permits Tenant to assign the Lease or sublet
the entire demised premises to one subtenant only or does not respond to
Tenant's Notice (provided that same shall be an assignment of the Lease or
subletting of the entire demised premises to one tenant only) and such
assignment or subletting does not commence during a period which shall be not
less than 60 nor more than 90 days from the date of Tenant's Notice, then
Landlord's consent shall be deemed withdrawn and Tenant shall comply anew with
the provisions of subdivision (a).
(vi) Tenant will not sublet the demised premises or assign the Lease to
any person, firm, subsidiary, affiliate or group who, or which, at the time of
the proposed subletting or assignment occupies any space in the building.
(vii) Tenant agrees to pay Landlord, as additional rent, any rent and
other charges received by it in excess of what it pays under this Lease,
including the rental and sales proceeds of any furniture, furnishings or
equipment, and agrees not to sublease for any lesser amount. The rent,
additional rent and other charges shall be paid directly to Landlord, for the
account of Tenant, and the acceptance of same shall not relieve Tenant of its
obligations hereunder nor constitute an attornment by Landlord.
<PAGE>
ADDITIONAL PARAGRAPHS ATTACHED TO AND FORMING A PART OF LEASE DATED JANUARY 5,
1999, BETWEEN GETTINGER ASSOCIATES AND JENNA LANE INC.
45. (a)The term "Wage Rate" shall mean the minimum regular hourly wage expressed
in terms of hourly wage, as the aggregate hereof shall be prescribed for Porters
in Class A office buildings pursuant to an agreement between the Realty Advisory
Board on Labor Relations Inc.,("R.A.B."), (or any successor thereto) and Local
32B of the Building Service Employees International Union, AFL-CIO (or any
successor thereto) covering the wages of Porters in such buildings, together
with payroll taxes imposed on such wages, provided that if in any year during
the term of this Lease, any such agreement shall require the regular
employment of Porters on such days or during hours when overtime or other
premium rates are in effect pursuant to such agreement, then the term "regular
hourly wage" as used in this paragraph shall be deemed to mean the average
hourly wage for the hours in a calendar week during which Porters are required
to be regularly employed (e.g. if, as of October 1, 1985 an agreement between
R.A.B. and Local 32B shall require employment of Porters for forty (40) hours
during a calendar week at a regular hourly wage of $3.00 for the first thirty
(30) hours, and a premium of overtime hourly wage of $4.50 for the remaining ten
(10) hours, then the regular hourly wage under this Agreement, as of October 1,
1985, shall be the total weekly wage of $135.00 divided by the total number of
required hours of employment, forty (40) or $3.75). If there is no such
agreement in effect prescribing such Wage Rate for Porters, computations and
payments shall thereupon be made upon the basis of the Wage Rate actually
payable to Porters by Landlord or by the contractor performing the cleaning
services for Landlord.
(b) The term "Base Wage Rate" shall mean the Wage Rate in effect in
1999.
(c) The term "Porters" shall mean the classification of employee
engaged in the general maintenance and operation of office buildings most nearly
comparable to that classification now applicable to Porters in the current
agreement between R.A.B. and Local 32B (which classification is presently termed
"others" in said agreements).
(d) If at any time during the term of this Lease, the Wage Rate shall
be greater than the Base Wage Rate, then Tenant shall pay, as additional rent,
an amount equal to the product obtained by multiplying 1 times the rentable area
of the demised premises under this Lease by the number of cents (including any
fraction thereof) by which the Wage Rate is greater than the Base Wage Rate,
such payment to be made in equal monthly installments commencing with the first
monthly installment of fixed rent becoming due on or after the effective date of
such increase in Wage Rate and continuing thereafter until a new adjustment
shall have become effective in accordance with the provisions of this paragraph.
Landlord shall give Tenant written notice of each change in Wage Rate which will
be effective to create Tenant's obligation to pay additional rent, pursuant to
the provisions of this paragraph, after Landlord learns thereof, and such notice
shall contain Landlord's calculation of the additional rent payable resulting
from such increase in Wage Rate. For the purpose of this paragraph, the parties
agree that the area of the demised premises under this Lease shall be deemed to
be 11,400 square feet.
<PAGE>
ADDITIONAL PARAGRAPHS ATTACHED TO AND FORMING A PART OF LEASE DATED JANUARY 5,
1999, BETWEEN GETTINGER ASSOCIATES AND JENNA LANE INC.
46. Notwithstanding anything to the contrary contained herein, Landlord agrees
that $32,433.34 of the security deposit shall be made by transferring Tenant's
existing security deposit under the lease dated September 8, 1997, covering Unit
"2004" in the Building between Landlord and Tenant ("Existing Lease"),. which
transfer shall be made upon the termination of the Lease as follows, and the
remaining security deposit in the amount of $35,966.66 shall be paid upon the
execution and delivery of this Lease to Landlord, and shall represent the
security deposit required hereunder.
Tenant is currently the occupant and tenant of Unit "2004" ("Existing
Space") in the Building pursuant to the Existing Lease. Until such time as
Tenant vacates the Existing Space and relocates to the premises hereunder
(unless the Existing Lease shall otherwise expire by its terms) Tenant shall pay
to Landlord rent and additional rent under the Existing Lease. Upon the date
Tenant gives written notice to Landlord that it has relocated to the premises
hereunder ("Move-In Date"), the Existing Lease shall be deemed terminated and
thereafter Tenant shall have no liability thereunder except to vacate the
Existing Space in the manner as provided in the Existing Lease (with no
obligation to restore same to any condition previously existing). Rent and
additional rent under the Existing Lease shall be pro-rated to the date of such
termination.
47. Landlord shall indemnify Tenant (including with respect to
reasonable attorneys fees and expenses) with respect to any commission payable
or claimed to be payable to any broker alleging it was engaged by Landlord, its
agents or representatives. Tenant shall indemnify Landlord (including with
respect to reasonable attorneys fees an expenses) with respect to any commission
payable or claimed to be payable to any broker alleging it was engaged by
Tenant, its agents or representatives.
48. Landlord and Tenant acknowledge that, notwithstanding the
termination of this Lease on July 31, 2006, Landlord's lease term under its
Master Lease expires November 30, 2004. Landlord warrants and represents that it
has options to renew the Master Lease for periods extending through November
30,.2048. In the event, for any reason, Landlord does not renew the Master Lease
beyond November 30, 2004, Landlord shall not be liable to Tenant in any respect
by reason thereof after such date.
<PAGE>
RULES AND REGULATIONS
1. The sidewalks, entrances, Passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than ingress and egress to and from the
demised premises.
2. The freight and not the passenger elevators shall be used by the working
hands of the Tenant and by persons calling for and delivering goods to and from
the demised premises.
3. The Landlord may refuse admission to the building outside of ordinary
business hours to any person not known to the watchman in charge or not having a
pass issued by the Landlord or not properly identified, and may require all
persons admitted to or leaving the building outside of ordinary business hours
to register. Any person whose presence in the building sit any time shall in the
Landlord's judgment, be prejudicial to the safety, character, reputation and
interests of the building or of its tenants may be denied access to the building
or may be ejected therefrom. 'the Landlord ma require any person leaving the
building with any package or other object to exhibit a pass from the tenant from
whose premises the package or object is being removed, but the establishment and
enforcement of such requirements shall not impose any responsibility on the
Landlord for the protection of any tenant against the removal of property from
the premises of the tenant. Landlord shall, in no way, be liable to any tenant
for damages or loss arising from the admission, exclusion or ejection of any
person to or from the premises or the building under the provision of this Rule.
4. No tenants shall obtain or accept for use in the premises ice, drinking
water, towel, barbering, bootblacking, floor polish or other similar services
from any persons not authorized by the Landlord in writing to furnish such
services, provided always, that the charges for such services by persons
authorized by the Landlord are not excessive. Such services shall be furnished
only at hours and under regulations fixed by the Landlord.
5. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of the Landlord. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the premises, without the Landlord's
prior written consent.
6. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the hills, passageways or other public places in the
building shall not be covered or obstructed by any Tenant, nor shall any
bottles, parcels, or other articles be placed on the window sills.
7. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or substances shall be thrown therein. All damages
resulting from any misuse of the fixtures shall be borne by the Tenant who, or
whose servants, employees, agents, visitors or licensees, shall have caused the
same.
<PAGE>
8. No Tenant shall mark, paint, drill into, or in any way deface any part of
the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of the Landlord, and as the Landlord may direct. No Tenant shall lay
linoleum, or other similar floor coverings, so that the same shall come in
direct contact with the floor of the demised premises, and, if linoleum or other
similar floor covering is desired to be used an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive material
being expressly prohibited.
9. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises or those having business with them whether by the use of any
instrument, radio, talking machine, unmusical noise, whistling, singing, Or in
any other way.
10. No Tenant, nor any of Tenant's servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the demised premises any
inflammable, combustible or explosive fluid, chemical or substance, or cause or
permit any unusual or objectionable odors to be produced upon or permeate from
the demised premises.
11. No Tenant shall place a load upon any floor of the building exceeding
the door load per square foot area which such floor was designed to carry, and
211 floor loads shall be evenly distributed. All removals, or the carrying in or
out of any safes, freight, furniture or bulky matter of any description must
take place during such hours and in a manner approved by the Landlord. Landlord
reserves the right to prescribe the weight and position of safes as well as the
placing of large quantities of merchandise. The Landlord reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any provision of the lease of which these
Rules and Regulations are a part or any of these Rules and Regulations.
12. All machinery shall be placed by the Tenant in the demised premises in
approved settings to absorb or prevent any vibration, noise or annoyance.
13. The Landlord shall have the right to prohibit any advertising by any
Tenant which, in its opinion, tends to impair the reputation of the building or
its desirability as a building for lofts, and upon written notice from the
Landlord, Tenants shall refrain from or discontinue such advertising.
14. Any person employed by any Tenant to do janitor work, shall, while in
said building and outside of said demised premises, be subject to, and under the
control and direction of the Superintendent of said building (but not as agent
or servant of said Superintendent or of the Landlord).
15. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall co-operate to prevent the same.
16. No water cooler, air conditioning unit or system or other apparatus
shall be installed or used by any Tenant without the written consent of
Landlord.
17. There shall not be used in any space, or in the public halls of any
building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
18. The Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building, when in its judgment, it
deems it necessary, desirable or proper for its best interest and for the best
interests of the tenants, and no alteration or waiver of any rule or regulation
in favor of one Tenant shall operate as an alteration or waiver in favor of any
other Tenants.
19. No tenant shall bring into or permit any person to bring into the
building or premises, at anytime, pets or animals of any kind without first
obtaining Landlord's written approval.
<PAGE>
EXHIBIT 10.23
Revised 10/07/98
LEASE, dated October 13, 1998, between Hartz Mountain Associates, a New
Jersey general partnership, having an office at 400 Plaza Drive, Secaucus, New
Jersey 07094-3688 ("Landlord"), and Jenna Lane, Inc., a Delaware corporation,
having an office at 1407 Broadway, Suite 2004, New York, New York 10018
("Tenant").
ARTICLE I - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: $33,395.28.
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent and Percentage Rent.
C. Architect: Kenneth Carl Bonte, or as Landlord may designate.
D. Broker: Chaus Realty.
E. Building: The building or buildings now or hereafter located on the
Land and known or to be known as 900 Secaucus Road, Secaucus, New Jersey.
F. Building Fraction: The fraction, the numerator of which is the Floor
Space of the Building (approximately 164,794 square feet) and the denominator of
which is the aggregate Floor Space of the buildings in the Development. If the
aggregate Floor Space of the buildings in the Development shall be changed due
to any construction or alteration, the denominator of the Building Fraction
shall be increased or decreased to reflect such change.
G. Calendar Year: Any twelve-month period commencing on a January 1.
H. Commencement Date: January 1, 1999.
I. Common Areas: All areas, spaces and improvements in the Building and
on the Land which Landlord makes available from time to time for the common use
and benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, sidewalks, landscaped and planted
areas, community rooms, if any, the managing agent's office, if any, and public
rest rooms, if any.
J. Demised Premises: The space that is outlined in red on the floor
plan attached hereto as Exhibit A. The Demised Premises contains or will contain
approximately 72,206 square feet of Floor Space subject to adjustment upon
verification by the Architect.
<PAGE>
K. Development: All land and improvements owned by Landlord or its
parents, subsidiaries, or affiliates, now existing or hereafter constructed,
located south of Route 3, east of the Hackensack River, west of County Avenue
and north of Castle Road.
L. Development Common Areas: The roads and bridges that from time to
time service and provide access to the Development for the common use of the
tenants, invitees, occupants of the Development, that are maintained by Landlord
or its related entities.
M. Expiration Date: The date that is the day before the fifth (5th)
anniversary of the Commencement Date if the Commencement Date is the first day
of a month, or the fifth (5th) anniversary of the last day of the month in which
the Commencement Date occurs if the commencement Date is not the first day of a
month. However, if the Term is extended by Tenant's effective exercise of
Tenant's right, if any, to extend the Term, the "Expiration Date" shall be
changed to the last day of the latest extended period as to which Tenant shall
have effectively exercised its right to extend the Term. For the purposes of
this definition, the earlier termination of this Lease shall not affect the
"Expiration Date."
N. Fixed Rent: An amount at the annual rate of Five and 55/100 Dollars
($5.55) for each year of the Term multiplied by the Floor Space of the Demised
Premises. It is intended that the Fixed Rent shall be an absolutely net return
to Landlord throughout the Term, free of any expense, charge or other deduction
whatsoever, with respect to the Demised Premises, the Building, the Land and/or
the ownership, leasing, operation, management, maintenance, repair, rebuilding,
use or occupation thereof, or any portion thereof, with respect to any interest
of Landlord therein, except as may otherwise expressly be provided in this
Lease.
0. Floor Space: Any reference to Floor Space of a demised premises
shall mean the floor area stated in square feet bounded by the exterior faces of
the exterior walls, or by the exterior or Common Areas face of any wall between
the premises in question and any portion of the Common Areas, or by the center
line of any wall between the premises in question and space leased or available
to be leased to a tenant or occupant, plus a pro rata portion of the floor area
of the Common Areas in the Building; and any reference to Floor Space of the
Building shall mean the aggregate Floor Space of the demised premises leased or
which Landlord has available to be leased in the Building. There will be no
reduction of Floor Space measurements for setbacks for store fronts or service
entrances, and Floor Space of any premises with a setback for a store front
shall be measured to the line of such premises as if such premises had no
setback. Any reference to the Floor Space is intended to refer to the Floor
Space of the entire area in question irrespective of the Person(s) who may be
the owner(s) of all or any part thereof.
P. Guarantor: Not Applicable.
<PAGE>
Q. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
R. Land: The Land upon which the Building and Common Areas are located.
The Land is described on Exhibit B.
S. Landlord's Work: The materials and work to be furnished, installed
and performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
T. Legal Requirements: Laws and ordinances of all federal, state, city,
town, county, borough and village governments, and rules, regulations, orders
and directives of all departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-public authorities
having jurisdiction over the Land and Building, whether now or hereafter in
force, including, but not limited to, those pertaining to environmental matters.
U. Mortgage: A mortgage and/or a deed of trust.
V. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
W. Operating Expenses: The sum of the following: (1) the cost and
expense (whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing, insurance and operation of the Building and
Land, and (2) the Building Fraction of the sum of (a) the cost and expense for
the repair, replacement, maintenance, policing, insurance and operation of the
Development Common Areas; (b) the Real Estate Taxes, if any, attributable to the
Development Common Areas; and (3) the Parking Charges. The "Operating Expenses"
shall, include, without limitation, the following: (i) the cost for rent,
casualty, liability, boiler and fidelity insurance, (ii) if an independent
managing agent is employed by Landlord, the fees payable to such agent (provided
the same are competitive with the fees payable to independent managing agents of
comparable facilities), (iii) costs and expenses incurred for legal, accounting
and other professional services (including, but not limited to, costs and
expenses for in-house or staff legal counsel or outside counsel at rates not to
exceed the reasonable and customary charges for any such services as would be
imposed in an arms length third party agreement for such services), plus (iv) if
Landlord is itself managing the Building and has not employed an independent
third party for such management, twenty-five percent (25%) of the resulting
total of all of the foregoing items making up "Operating Expenses" for
Landlord's home office administration and overhead cost and expense. All items
included in Operating Expenses shall be determined in accordance with generally
accepted accounting principles consistently applied.
X. Parking Charges: The cost and expense of the repair, replacement,
striping, maintenance, policing, insurance, Real Estate Taxes, utilities, and
landscaping attributable to the pro-rata share of the parking area(s) and
deck(s), if any, allocated to the Building by Landlord. The pro-rata share shall
be determined based upon the number of parking spaces allocated to the Building
divided by the total number of the parking spaces in such parking area(s) and
deck(s).
<PAGE>
Y. Permitted Uses: Warehousing and distribution of non-hazardous
materials and ancillary offices and warehouse outlet store incidental to the
operation of the warehouse portion of the Demised Premises in an area not to
exceed the lesser of (i) 2000 square feet or (ii) the size permitted by
applicable zoning requirements.
Z. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
AA. Ready for Occupancy: The condition of the Demised Premises when for
the first time the Landlord's Work shall have been substantially completed and,
if same is required to be obtained by Landlord, a temporary, permanent, or
continuing Certificate of Occupancy shall have been issued permitting use of the
Demised Premises for the Permitted Uses. The Landlord's Work shall be deemed
substantially completed notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment or decoration remain to be
performed, the noncompletion of which does not materially interfere with
Tenant's use of the Demised Premises.
BB. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any reasonable
expenses incurred by Landlord in contesting such taxes or assessments and/or the
assessed value of the Building and Land, which expenses shall be allocated to
the period of time to which such expenses relate. If at any time during the Term
the methods of taxation prevailing on the date hereof shall be altered so that
in lieu of, or as an addition to or as a substitute for, the whole or any part
of such real estate taxes, assessments and special assessments now imposed on
real estate there shall be levied, assessed or imposed (a) a tax, assessment,
levy, imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof.
CC. Rent: The Fixed Rent, the Percentage Rent and the Additional
Charges.
DD. Rules and Regulations: The reasonable rules and regulations that
may be promulgated by Landlord from time to time, which may be reasonably
changed by Landlord from time to time. The Rules and Regulations now in effect
are attached hereto as Exhibit D.
EE. Security Deposit: Such amount as Tenant has deposited or
hereinafter deposits with Landlord as security under this Lease. Tenant has
delivered a Letter of Credit in the amount of $100,000.00 as security hereunder
as of the date hereof.
FF. Successor Landlord: As defined in Section 9.03.
GG. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate.
<PAGE>
HH. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
II. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
JJ. INTENTIONALLY OMITTED.
KK. Tenant's Fraction: The Tenant's Fraction shall mean the fraction,
the numerator of which shall be the Floor Space of the Demised Premises and the
denominator of which shall be the Floor Space of the Building (currently
43.81%). If the size of the Demised Premises or the Building shall be changed
from the initial size thereof, due to any taking, any construction or alteration
work or otherwise, the Tenant's Fraction shall be changed to the fraction, the
numerator of which shall be the Floor Space of the Demised Premises and the
denominator of which shall be the Floor Space of the Building. In the event
Landlord determines that Tenant's utilization of any item of Operating Expenses
exceeds the fraction referred to above, Tenant's Fraction with respect to such
item shall, at Landlord's option, mean the percentage of any such item (but not
less than the fraction referred to above) which Landlord reasonably estimates as
Tenant's proportionate share thereof
LL. Tenant's Property: As defined in Section 16-02.
MM. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy.
NN. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
00. Unavoidable Delays-, A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement or an
act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay.
<PAGE>
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) any
and all existing encumbrances, conditions, rights, covenants, easements,
restrictions and rights of way, of record, and other matters of record,
applicable zoning and building laws, regulations and codes, and such matters as
may be disclosed by an inspection or survey, and (b) easements now or hereafter
created by Landlord in, under, over, across and upon the Land for sewer, water,
electric, gas and other utility lines and services now or hereafter installed;
provided, however, Landlord represents covenants and warrants to Tenant that the
Demised Premises may be used and occupied for the purposes set forth herein; and
that the foregoing shall in no manner interfere with Tenant's use and quiet
enjoyment of the Demised Premises. Promptly following the Commencement Date, the
parties hereto shall enter into an agreement in form and substance satisfactory
to Landlord setting forth the Commencement Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease). If the Commencement
Date occurs on a day other than the first day of a calendar month, the Fixed
Rent for the partial calendar month at the commencement of the Term shall be
prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives
Tenant's right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may
<PAGE>
apply any payments made by Tenant to such items as Landlord sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items to which any such payments shall be credited.
3.05. In the event that any installment of Rent due hereunder shall be
overdue for a period of five (5) days after the due date, a "Late Charge" equal
to four percent (4%) or the maximum rate permitted by law, whichever is less
("Late Payment Rate") for Rent so overdue may be charged by Landlord for each
month or part thereof that the same remains overdue. In the event that any check
tendered by Tenant to Landlord is returned for insufficient funds, Tenant shall
pay to Landlord, in addition to the charge imposed by the preceding sentence, a
fee of $25.00. Any such Late Charges if not previously paid shall, at the option
of the Landlord, be added to and become part of the next succeeding Rent payment
to be made hereunder. Notwithstanding anything herein contained to the contrary,
Tenant shall not be assessed the within Late Charge one (1) time each Calendar
Year of the Term for late payment of Rent, unless, in any preceding Calendar
Year, Tenant has been late in the payment of Rent more than two (2) times.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the
Permitted Uses, and Tenant shall not use or permit or suffer the use of the
Demised Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, including a certificate
of occupancy or certificate of continued occupancy (a "Certificate of
Occupancy") shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly procure
and thereafter maintain such license or permit and submit the same to Landlord
for inspection. Tenant shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the character, reputation
or appearance of the Building; (e) impairs or tends to impair the proper and
economic maintenance, operation and repair of the Building and/or its equipment,
facilities or systems; or (f) unreasonably annoys or inconveniences or tends to
unreasonably annoy or inconvenience other tenants or occupants of the Building.
<PAGE>
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. (a) The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner described in, and subject to the provisions of,
Exhibit C. Tenant shall occupy the Demised Premises promptly after the same are
Ready for Occupancy and possession thereof is delivered to Tenant by Landlord
giving to Tenant a notice of such effect. Except as expressly provided to the
contrary in this Lease, the taking of possession by Tenant of the Demised
Premises shall be conclusive evidence as against Tenant that the Demised
Premises and the Building were in good and satisfactory condition at the time
such possession was taken, except with respect to latent structural defects.
Except as expressly provided to the contrary in this Lease, Tenant is leasing
the Demised Premises "as is" on the date hereof, subject to reasonable wear and
tear and the rights of the present occupant(s) of the Demised Premises to remove
its or their trade fixtures and other property from the Demised Premises as well
as the substantial completion of Landlord's Work.
5.01. (b) Tenant shall, within fifteen (15) days of the date hereof,
provide Landlord with all information Landlord needs to prepare working drawings
for the construction of Landlord's Work. Such information shall include, but not
be limited to layout of the Demised Premises, electrical, mechanical, plumbing &
structural requirements, materials & finishes. Within thirty (30) days of
Landlord's receipt of all necessary information, Landlord shall deliver working
drawings to Tenant. Tenant shall, within fifteen (15) days of its receipt of
working drawings, review and approve the working drawings by giving Landlord
written notice thereof. If Tenant does not respond within said fifteen (15) day
period, the working drawings shall be deemed approved. If Tenant disapproves of
the working drawings, it shall specify in detail the reasons for its
disapproval. If Tenant makes changes in the working drawings, the provisions of
Section 5.02 shall apply. Within twenty(20) days after the working drawings are
approved or deemed approved, Landlord shall submit to Tenant prices for the
construction of any items in excess of Landlords' Work. Tenant shall, within
fifteen (15) days of its receipt of prices, review and approve the prices by
giving Landlord written notice thereof. If Tenant does not respond within said
fifteen (15) day period, the prices shall be deemed approved. If Tenant
disapproves of any prices, the provisions of Section 5.02 shall apply.
5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, [i] any delays due to changes in
or additions to the Landlord's Work, or [ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant that require long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s). The Demised Premises shall be
conclusively presumed to be in satisfactory condition on the Commencement Date
except for the minor or insubstantial details of which Tenant gives Landlord
notice within thirty (30) days after the Commencement Date specifying such
details with reasonable particularity.
<PAGE>
5.03. If Landlord is unable to give possession of the Demised Premises
on the Commencement Date because of the holding-over or retention of possession
by any tenant, undertenant or occupant, Landlord shall not be subject to any
liability for failure to give possession, the validity of this Lease shall not
be impaired under such circumstances, and the Term shall not be extended, but
the Rent shall be abated if Tenant is not responsible for the inability to
obtain possession.
5.04. Landlord reserves the right, at any time and from time to time,
to increase, reduce or change the number, type, size, location, elevation,
nature and use of any of the Common Areas and the Building and any other
buildings and other improvements on the Land, including, without limitation, the
right to move and/or remove same, provided same shall not unreasonably block or
interfere with Tenant's means of ingress or egress to and from the Demised
Premises.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Real Estate Taxes. Tenant's Fraction of the Real Estate Taxes
shall be the Real Estate Taxes in respect of the Building for the period in
question, multiplied by the Tenant's Fraction, plus the Real Estate Taxes in
respect of the Land for the period in question, multiplied by the Tenant's
Fraction. If any portion of the Building shall be exempt from all or any part of
the Real Estate Taxes, then for the period of time when such exemption is in
effect, the Floor Space on such exempt portion shall be excluded when making the
above computations in respect of the part of the Real Estate Taxes for which
such portion shall be exempt. Landlord shall estimate the annual amount of
Tenant's Fraction of the Real Estate Taxes (which estimate may be changed by
Landlord in good faith at any time and from time to time), and Tenant shall pay
to Landlord 1/12 of the amount so estimated on the first day of each month in
advance. Tenant shall also pay to Landlord on demand from time to time the
amount which, together with said monthly installments, will be sufficient in
Landlord's good faith estimation to pay Tenant's Fraction of any Real Estate
Taxes thirty (30) days prior to the date when such Real Estate Taxes shall first
become due. When the amount of any item comprising Real Estate Taxes is finally
determined for a real estate fiscal tax year, Landlord shall submit to Tenant a
statement in reasonable detail of the same, and the figures used for computing
Tenant's Fraction of the same, and if Tenant's Fraction so stated is more or
less than the amount theretofore paid by Tenant for such item based on
Landlord's estimate, Tenant shall pay to Landlord the deficiency within ten (10)
days after submission of such statement, or Landlord shall, at its sole
election, either refund to Tenant the excess or apply same to future
installments of Real Estate Taxes due hereunder. Any Real Estate Taxes for a
real estate fiscal tax year, a part of which is included within the Term and a
part of which is not so included, shall be apportioned on the basis of the
number of days in the real estate fiscal tax year included in the Term, and the
real estate fiscal tax year for any improvement assessment will be deemed to be
the one-year period commencing on the date when such assessment is due, except
that if any improvement assessment is payable in installments, the real estate
fiscal tax year for each installment will be deemed to be the one-year period
commencing on the date when such installment is due. The above computations
shall be made by Landlord in accordance with generally accepted accounting
principles, and the Floor Space referred to will be based upon the average of
the Floor Space in existence on the first day of each month during the period in
question. In addition to the foregoing, Tenant shall be responsible for any
increase in Real
<PAGE>
Estate Taxes attributable to assessments for improvements installed by or for
the account of Tenant at the Demised Premises. If the Demised Premises are not
separately assessed, the amount of any such increase shall be determined by
reference to the records of the tax assessor.
6.02. Real Estate Taxes, whether or not a lien upon the Demised
Premises shall be apportioned between Landlord and Tenant at the beginning and
end of the Term; it being intended that Tenant shall pay only that portion of
the Real Estate Taxes as is allocable to the Demised Premises for the Term.
6.03. Tenant shall pay to Landlord Tenant's Fraction of the Operating
Expenses incurred during the Tenn of this Lease within fifteen (15) days after
Landlord submits to Tenant an invoice for same.
6.04. Each such statement given by Landlord pursuant to Section 6.01 or
Section 6.03 shall be conclusive and binding upon Tenant unless within 30 days
after the receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the particular respects in
which the statement is claimed to be incorrect. If such dispute is not settled
by agreement, either party may submit the dispute to arbitration as provided in
Article 34. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall, within ten (10) days after receipt of
such statement, pay the Additional Charges in accordance with Landlord's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment resulting from compliance with Landlord's statement as
well as the reasonable attorney fees incurred by Tenant in connection with said
arbitration. If the dispute is determined in Landlord's favor, Tenant shall pay
Landlord's reasonable attorneys fees in connection with said arbitration.
6.05. Landlord hereby grants Tenant the right, upon reasonable prior
written notice to Landlord, and at Tenant's sole cost and expense, to inspect
Landlord's books and records as same relate to Tenant's Operating Expenses and
Real Estate Taxes. Any such inspection shall occur at Landlord's normal place of
business and during Landlord's normal business hours.
6.06. In the event Landlord receives a refund for Real Estate Taxes
paid for a time period in which Tenant paid Tenant's Fraction of such Real
Estate Taxes (which were the subject of the refund), and Tenant is not otherwise
in default of this Lease, Landlord shall, at it's sole election, either (i)
provide Tenant with its proportionate share of such refund, or, (ii) apply
Tenant's proportionate share of such refund to future installments of Real
Estate Taxes due hereunder. It is expressly agreed and understood that Landlord
shall be entitled to deduct the reasonable cost and expense of prosecuting
and/or obtaining such refund prior to allocating any portion of such refund to
Tenant. The provisions of this Article 6.06 shall survive termination of this
Lease.
<PAGE>
ARTICLE 7 - COMMON AREAS
7.01. Except as may be otherwise expressly provided in this Lease and
so long as Tenant is not in default under this Lease beyond the applicable
notice and cure period provided in this Lease, if any, Landlord will competently
operate, manage, equip, light, repair and maintain, or cause to be operated,
managed, equipped, lighted, repaired and maintained, the Common Areas for their
intended purposes. Landlord reserves the right, at any time and from time to
time, to construct within the Common Areas kiosks, fountains, aquariums,
planters, pools and sculptures, and to install vending machines, telephone
booths, benches and the like, provided same shall not unreasonably block or
interfere with Tenant's means of ingress or egress to and from the Demised
Premises.
7.02. So long as Tenant is not in default under this Lease beyond the
applicable notice and cure period provided in this Lease, if any, Tenant and its
subtenants and concessionaires, and their respective officers, employees,
agents, customers and invitees, shall have the non-exclusive night, in common
with Landlord and all others to whom Landlord has granted or may hereafter grant
such right, but subject to the Rules and Regulations, to use the Common Areas.
Landlord reserves the right, at any time and from time to time, to close
temporarily all or any portions of the Common Areas when in Landlord's
reasonable judgement any such closing is necessary or desirable (a) to make
repairs or changes or to effect construction, (b) to prevent the acquisition of
public rights in such areas, (c) to discourage unauthorized parking, or (d) to
protect or preserve natural persons or property. Landlord may do such other acts
in and to the Common Areas as in its judgment may be desirable to improve or
maintain same, provided such acts shall not unreasonably block or interfere with
Tenant's means of ingress or egress to and from the Demised Premises.
7.03. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors, agents and invitees will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees and agents.
ARTICLE 8 - SECURITY
8.01. (a) In the event Tenant deposits with Landlord any Security
Deposit, the same shall be held as security for the full and faithful payment
and performance by Tenant of Tenant's obligations under this Lease. If Tenant
defaults in the full and prompt payment and performance of any of its
obligations under this Lease beyond the applicable notice and cure period
provided in this Lease, if any, including, without limitation, the payment of
Rent (in which case there is no notice or cure period), Landlord may use, apply
or retain the whole or any part of the Security Deposit to the extent required
for the payment of any Rent or any other sums as to which Tenant is in default
or for any sum which Landlord may expend or may be required to expend (as
otherwise provided in this Lease) by reason of Tenant's default in respect of
any of Tenant's obligations under this Lease, including, without limitation, any
damages or deficiency in the reletting of the Demised Premises, whether such
damages or deficiency accrue before or after summary proceedings or other
re-entry by Landlord. If Landlord shall so use, apply or retain the whole or any
part of the security, Tenant shall upon demand immediately deposit with Landlord
a sum equal to the amount so used, applied and retained, as security as
aforesaid. If Tenant shall fully and faithfully pay and perform all of
<PAGE>
Tenant's obligations under this Lease, the Security Deposit or any balance
thereof to which Tenant is entitled shall be returned or paid over to Tenant
within thirty (30) days after the date on which this Lease shall expire or
sooner end or terminate, and after delivery to Landlord of entire possession of
the Demised Premises. In the event of any sale or leasing of the Land, Landlord
shall have the right to transfer the security to which Tenant is entitled to the
vendee or lessee and Landlord shall thereupon be released by Tenant from all
liability for the return or payment thereof so long as the vendee or lessee
assumes the obligations of Landlord with respect to the Security Deposit as
provided in this Article 8; and Tenant shall look solely to the new landlord for
the return or payment of the same; and the provisions hereof shall apply to
every transfer or assignment made of the same to a new landlord. Tenant shall
not assign or encumber or attempt to assign or encumber the monies deposited
herein as security, and neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
8.01 (b). In lieu of the cash security required by this Lease, Tenant
shall provide to Landlord an irrevocable transferrable Letter of Credit in the
amount of the Security Deposit in form and substance satisfactory to Landlord
and issued by a financial institution approved by Landlord. Landlord shall have
the right, upon written notice to Tenant (except that for Tenant's non-payment
of Rent or for Tenant's failure to comply with Article 8.03, no such notice
shall be required) and regardless of the exercise of any other remedy the
Landlord may have by reason of a default, to draw upon said Letter of Credit to
cure any default of Tenant or for any purpose authorized by section 8.01 (a) of
this Lease and if Landlord does so, Tenant shall, upon demand, additionally fund
the Letter of Credit with the amount so drawn so that Landlord shall have the
full deposit on hand at all times during the Term of the Lease and for a period
of thirty (30) days' thereafter. In the event of a sale of the Building or a
lease of the Building subject to this Lease, Landlord shall have the right to
transfer the security to the vendee or lessee so long as the vendee or lessee
assumes the obligations of Landlord with respect to the Security Deposit as
provided in this Article 8.
8.02. The Letter of Credit shall expire not earlier than thirty (30)
days after the Expiration Date of this Lease. Upon Landlord's prior consent, the
Letter of Credit may be of the type which is automatically renewed on an annual
basis (Annual Renewal Date), provided however, in such event Tenant shall
maintain the Letter of Credit and its renewals in full force and effect during
the entire Term of this Lease, (including any renewals or extensions) and for a
period of (30) days thereafter. The Letter of Credit will contain a provision
requiring the issuer thereof to give the beneficiary (Landlord) sixty (60) days'
advance written notice of its intention not to renew the Letter of Credit on the
next Annual Renewal Date.
8.03. In the event Tenant shall fail to deliver to Landlord a
substitute irrevocable Letter of Credit, in the amount stated above, on or
before thirty (30) days prior to the next Annual Renewal Date, said failure
shall be deemed a default under this Lease. Landlord may, in its discretion
treat this the same as a default in the payment of Rent or any other default and
pursue the appropriate remedy. In addition, and not in limitation, Landlord
shall be permitted to draw upon the Letter of Credit as in the case of any other
default by Tenant under the Lease.
8.04. Provided Landlord has not given Tenant written notice of a
monetary default under
<PAGE>
this Lease more than once in either of the first two (2) Calendar Years of the
Term (with respect to the first proposed reduction discussed below) or more than
once in the Calendar Year immediately preceding the second proposed reduction,
referred to below, and provided Tenant is not then in default of its obligations
under this Lease, Landlord shall consent to a reduction of the Security Deposit
(by delivery of a new or amended Letter of Credit) in the amount of $16,600.00
on the second (2nd) anniversary of the Commencement Date and an additional
reduction of $16,600.00 on the third (3rd) anniversary of the Commencement Date
resulting in a Security Deposit for the balance of the Term (i.e., year four (4)
and subsequent thereto) in the amount of $66,800.00. In no event however shall
the Letter of Credit contain a provision for its automatic reduction.
ARTICLE 9 - SUBORDINATION
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such mortgages or leases shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be require In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver such instruments within 10 days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact coupled with an interest, to execute and deliver any
such instruments for and on behalf of Tenant.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant and (b) until a reasonable period
for remedying such act or omission shall have elapsed following the giving of
such notice and following the time when such Superior Mortgagee or Superior
Lessor shall have become entitled under such Superior Mortgage or Superior
Lease, as the case may be, to remedy the same (which reasonable period shall in
no event be less than the period to which Landlord would be entitled under this
Lease or otherwise, after similar notice, to effect such remedy), provided such
Superior Mortgagee or Superior Lessor shall with due diligence give Tenant
notice of intention to, and commence and continue to, remedy such act or
omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
<PAGE>
to and recognize such Successor Landlord " Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be liable
for the return of any Security Deposit, in whole or in part, to the extent that
same is not paid over to the Successor Landlord; or (d) be bound by any previous
modification of this Lease or by any previous prepayment of more than one
month's Fixed Rent or Additional Charges, unless such modification or prepayment
shall have been expressly approved in writing by the Superior Lessor of the
Superior Lease or the Mortgagee of the Superior Mortgage through or by reason of
which the Successor Landlord shall have succeeded to the rights of Landlord
under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall
require any modification(s) of this Lease, Tenant shall promptly execute and
deliver to Landlord such instruments effecting such modification(s) as Landlord
shall request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease.
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of
Tenant's other obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Demised Premises without hindrance, ejection or molestation
by Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord. Landlord agrees not to
unreasonably withhold its consent to the subletting of the Demised Premises or
an assignment of this Lease. In determining reasonableness, Landlord may take
into consideration all relevant factors surrounding the proposed sublease and
assignment, including, without limitation, the following: (i) The business
reputation of the proposed assignee or subtenant and its officers or directors
in relation to the other tenants or occupants of the Building or Development;
(ii) the nature of the business and the proposed use of the Demised Premises by
the proposed assignee or subtenant in relation to the other tenants or occupants
of the Building or Development; (iii) whether the proposed assignee or subtenant
is then a tenant (or subsidiary, affiliate or parent of a tenant) of other space
in the Building or Development, or any other property owned or managed by
Landlord or its affiliates; (iv) the financial condition of the proposed
assignee or subtenant; (v) restrictions, if any, contained in leases or other
agreements affecting the
<PAGE>
Building and the Development; (vi) the effect that the proposed assignee's or
subtenant's occupancy or use of the Demised Premises would have upon the
operation and maintenance of the Building and the Development; (vii) the extent
to which the proposed assignee or subtenant and Tenant provide Landlord with
assurances reasonably satisfactory to Landlord as to the satisfaction of
Tenant's obligations hereunder, In any event, at no time shall there be more
than two (2) subtenants of the Demised Premises permitted.
In the event the Demised Premises are sublet or this Lease is assigned,
Tenant shall pay to Landlord as an Additional Charge the following amounts less
the actual reasonable expense incurred by Tenant in connection with such
assignment or subletting, as substantiated by Tenant, in writing, to Landlord's
reasonable satisfaction, including, without limitation, a reasonable brokerage
fee and reasonable legal fees, as the case may be: (i) in the case of an
assignment, an amount equal to fifty percent (50%) of all sums and other
consideration paid to Tenant by the assignee for or by reason of such
assignment, and (ii) in the case of a sublease, fifty percent (50%) of any
rents, additional charge or other consideration payable under the sublease to
Tenant by the subtenant which is in excess of the Fixed Rent and Additional
Charges accruing during the term of the sublease in respect of the subleased
space (at the rate per square foot payable by Tenant hereunder) pursuant to the
terms hereof.
11.02. If at any time (a) the original Tenant named herein, (b) the
then Tenant, (c) any Guarantor, or (d) any Person owning a majority of the
voting stock of, or directly or indirectly controlling, the then Tenant shall be
a corporation or partnership, any transfer of voting stock or partnership
interest resulting in the person(s) who shall have owned a majority of such
corporation's shares of voting stock or the general partners' interest in such
partnership, as the case may be, immediately before such transfer, ceasing to
own a majority of such shares of voting stock or general partner's interest, as
the case may be, except as the result of transfers by inheritance, shall be
deemed to be an assignment of this Lease as to which Landlord's consent shall
have been required, and in any such event Tenant shall notify Landlord. The
provisions of this Section 11.02 shall not be applicable to any corporation all
the outstanding voting stock of which is listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended) or is
traded in the over-the-counter market with quotations reported by the National
Association of Securities Dealers through its automated system for reporting
quotations and shall not apply to transactions with a corporation into or with
which the then Tenant is merged or consolidated or to which substantially all of
the then Tenant's assets are transferred or to any corporation which controls or
is controlled by the then Tenant or is under common control with the then
Tenant, provided that in any of such events (i) the successor to Tenant has a
net worth computed in accordance with generally accepted accounting principles
at least equal to the greater of (1) the net worth of Tenant immediately prior
to such merger, consolidation or transfer, or (2) the net worth of the original
Tenant on the date of this Lease, and (ii) proof satisfactory to Landlord of
such net worth shall have been delivered to Landlord at least 10 days prior to
the effective date of any such transaction. For the purposes of this Section,
the words "voting stock" shall refer to shares of stock regularly entitled to
vote for the election of directors of the corporation. Landlord shall have the
right at any time and from time to time during the Term to inspect the stock
record books of the corporation to which the provisions of this Section 11.02
apply, and Tenant will produce the same on request of Landlord.
<PAGE>
11.03 If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.01 or without Landlord's consent if
permitted by Section 11.02, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance satisfactory to Landlord whereby the assignee
shall assume Tenant's obligations under this Lease and whereby the assignee
shall agree that all of the provisions in this Article 11 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect to all future assignments and transfers. Notwithstanding any assignment
or transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of Rent by Landlord from an assignee, transferee,
or any other party, the original Tenant and any other person(s) who at any time
was or were Tenant shall remain fully liable for the payment of the Rent and for
Tenant's other obligations under this Lease.
11.05. The liability of the original named Tenant and any other
Person(s) (including but not limited to any Guarantor) who at any time are or
become responsible for Tenant's obligations under this Lease shall not be
discharged, released or impaired by any agreement or stipulation made by
Landlord extending the time of, or modifying an of the terms or obligations
under this Lease, or by any waiver or failure of Landlord to enforce, any of
this Lease.
11.06. The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or the Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease or to any sublease of the Demised Premises or to the
use or occupancy thereof by others. Notwithstanding anything contained in this
Lease to the contrary, Landlord shall have the absolute right to withhold its
consent to an assignment or subletting to a Person who is otherwise a tenant or
occupant of the Building, or of a building owned by Landlord or its affiliated
entities.
11.07. Without limiting any of the provisions of Article 27, if
pursuant to the Federal
<PAGE>
Bankruptcy Code (or any similar law hereafter enacted having the same general
purpose), Tenant is permitted to assign this Lease notwithstanding the
restrictions contained in this Lease, adequate assurance of future performance
by an assignee expressly permitted under such Code shall be deemed to mean the
deposit of cash security in an amount equal to the sum of one (1) year's Fixed
Rent plus an amount equal to the Percentage Rent and the Additional Charges for
the Calendar Year preceding the year in which such assignment is intended to
become effective, which deposit shall be held by Landlord for the balance of the
Term, without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Article 8.
11.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the Demised Premises, or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Demised Premises by any person, Tenant shall give
notice thereof to Landlord, together with a copy of the proposed instrument that
is to accomplish same and such financial and other information pertaining to the
proposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
shall require, and Landlord may, in addition to Landlord's right to give or
withhold consent (if such consent is required), terminate this Lease by notice
given to Tenant within thirty (30) days after receipt of said proposed
instrument and financial and other information, and upon the date specified in
such notice, which date shall be not less than 30 days and not more than 60 days
after the giving of said notice, this Lease shall terminate. If Landlord does
not so terminate this Lease, and (if Landlord consents to the subject
transaction or if Landlord's consent is not required to same) if Tenant does not
consummate the subject transaction within 60 days after the last day on which
Landlord might have so terminated this Lease as a result of such transaction,
Tenant shall again be required to comply with the provisions of this Section 1
1. 08 in connection with any such transaction as if the notice by Tenant
referred to above in this Section 11.08 had not been given. Notwithstanding
anything contained in this Lease to the contrary, Landlord shall not be
obligated to entertain or consider any request by Tenant to consent to any
proposed assignment of this Lease or sublet of all or any part of the Demised
Premises unless each request by Tenant is accompanied by a non-refundable fee
payable to Landlord in the amount of One Thousand Dollars ($ 1,000,00) to cover
Landlord's administrative, legal, and other costs and expenses incurred in
processing each of Tenant's requests. Neither Tenant's payment nor Landlord's
acceptance of the foregoing fee shall be construed to impose any obligation
whatsoever upon Landlord to consent to Tenant's request.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
costs, fines, penalties, damages and reasonable expenses which may be imposed
upon Landlord or any Superior Lessor by reason of or arising out of Tenant's
failure to fully and promptly comply with and observe the provisions of this
Section 12.01. However, Tenant need not comply with any such law or requirement
of any public authority so long as Tenant shall be contesting the validity
thereof, or the applicability thereof to the Demised Premises, in accordance
with Section 12.02.
<PAGE>
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall @sh to Landlord either (i)
the bond of a surety company satisfactory to Landlord, which bond shall be, as
to its provisions and form, satisfactory to Landlord, and shall be in an amount
at least equal to 125% of the cost of such compliance (as estimated by a
reputable contractor designated by Landlord) and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance, or
at Tenant's election, (ii) other security in place of such bond satisfactory to
Landlord; (c) such noncompliance or contest shall not constitute or result in
any violation of any Superior Lease or Superior Mortgage, or if any such
Superior Lease and/or Superior Mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be famished at the
expense of Tenant; and (d) Tenant shall keep Landlord advised as to the status
of such proceedings. Without limiting the application of the above, Landlord
shall be deemed subject to prosecution for a crime if Landlord, or its managing
agent, or any officer, director, partner, shareholder or employee of Landlord or
its managing agent, as an individual, is charged with a crime of any kind or
degree whatsoever, whether by service of a summons or otherwise, unless such
charge is withdrawn before Landlord or its managing agent, or such officer,
director, partner, shareholder or employee of Landlord or its managing agent (as
the case may be) is required to plead or answer thereto. Notwithstanding
anything contained in this Lease to the contrary, Tenant shall not file any Real
Estate Tax Appeal with respect to the Land, Building or the Demised Premises.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Landlord shall maintain or cause to be maintained All Risk
insurance in respect of the Building and other improvements on the Land normally
covered by such insurance (except for the property Tenant is required to cover
with insurance under Section 13.02 and similar property of other tenants and
occupants of the Building or buildings and other improvements which are on land
neither owned by nor leased to Landlord) for the benefit of Landlord, any
Superior Lessors, any Superior Mortgagees and any other parties Landlord may at
any time and from time to time designate, as their interests may appear, but not
for the benefit of Tenant, and shall maintain rent insurance as required by any
Superior Lessor or any Superior Mortgagee. The All Risk insurance will be in the
amounts required by any Superior Lessor or any Superior Mortgagee but not less
than the amount sufficient to avoid the effect of the co-insurance provisions of
the applicable policy or policies. Landlord may also maintain any other forms
and types of insurance which Landlord shall deem reasonable in respect of the
Building and Land. Landlord shall have the right to provide any insurance
maintained or caused to be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a) comprehensive
general public liability insurance in respect of the Demised Premises and the
conduct and operation of business therein, having not less than a $5,000,000.00
combined single limit per occurrence for bodily injury
<PAGE>
or death to any one person and for bodily injury or death to any number of
persons in any one occurrence, and for property damage, including water damage
and sprinkler leakage legal liability (coverage to include but not be limited to
(i) premises operation, completed operations, broad form contractual liability
and product liability, (ii) comprehensive automobile, truck and vehicle
liability insurance covering all owned, hired and non-owned vehicles used by the
contractor(s) in connection with their work and any loading of such vehicles,
with limits as stated above and (iii) worker's compensation, employers liability
and occupational disease insurance as required by statutes, but in any event not
less than $500,000.00 for Coverage B covering all damages and injuries arising
from each accident or occupational disease) and (b) All Risk insurance in
respect of Tenant's stock in trade, fixtures, furniture, furnishings, removable
floor coverings, equipment, signs and all other property of Tenant in the
Demised Premises in any amounts required by any Superior Lessor or any Superior
Mortgagee but not less than eighty percent (80%) of the full insurable value of
the property covered and not less than the amount sufficient to avoid the effect
of the co-insurance provisions of the applicable policy or policies, and (c)
such other insurance as is required for compliance with the Insurance
Requirements. Landlord may at any time and from time to time require that the
limits for the comprehensive general public liability insurance to be maintained
by Tenant be increased to the limits that new tenants in the Building are
required by Landlord to maintain (provided the limits for such new tenant(s) are
not predicated upon some ultra-hazardous activity). Tenant shall deliver to
Landlord and any additional named insured(s) certificates for such fully
paid-for policies upon execution hereof Upon request of Landlord, Tenant shall
furnish Landlord with copies of all such insurance policies. Tenant shall
procure and pay for renewals of such insurance from time to time before the
expiration thereof, and Tenant shall deliver to Landlord and any additional
insured(s) certificates therefor at least thirty (30) days before the expiration
of any existing policy. All such policies shall be issued by companies of
recognized responsibility, having a Bests Key Rating Guide of not less than A,
Class VII, licensed to do business in New Jersey, and all such policies shall
contain a provision whereby the same cannot be canceled unless Landlord and any
additional insured(s) are given at least thirty (30) days' prior written notice
of such cancellation. The certificates of insurance to be delivered to Landlord
by Tenant shall name Landlord as an additional insured and, at Landlord's
request, shall also name any Superior Lessors or Superior Mortgagees as
additional insureds, and the following phrase must be typed on the certificate
of insurance: "Hartz Mountain Industries, Inc., and its respective subsidiaries,
affiliates, associates, joint ventures, and partnerships, are hereby named as
additional insureds as their interests may appear (and if Landlord has so
requested, Tenant shall include any Superior Lessors and Superior Mortgagees as
additional insured(s)). It is intended for this insurance to be primary and
non-contributing." Tenant shall give Landlord at least thirty (30) days' prior
written notice that any such policy is being canceled or replaced.
13.03. Tenant shall not do, permit or suffer to be done any act,
matter, thing or failure to act in respect of the Demised Premises or use or
occupy the Demised Premises or conduct or operate Tenant's business in any
manner objectionable to any insurance company or companies whereby the fire
insurance or any other insurance then in effect in respect of the Land and
Building or any part thereof shall become void or suspended or whereby any
premiums in respect of insurance maintained by Landlord shall be higher than
those which would normally have been in effect for the occupancy contemplated
under the Permitted Uses. In case of a breach of the provisions of this Section
13.03, in addition to all other rights and remedies of Landlord hereunder,
Tenant shall (a) indemnify
<PAGE>
Landlord and the Superior Lessors and hold Landlord and the Superior Lessors
harmless from and against any loss which would have been covered by insurance
which shall have become void or suspended because of such breach by Tenant and
(b) pay to Landlord any and all increases of premiums on any insurance,
including, without limitation, rent insurance, resulting from any such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord or its agents) in the
Demised Premises during the Term or during the period of time, if any, prior to
the Commencement Date that Tenant may have been given access to the Demised
Premises; (b) any act, omission or negligence of Tenant or any of its subtenants
or licensees or its or their partners, joint venturers, directors, officers,
agents, employees or contractors; (c) any accident, injury or damage whatever
(unless caused solely by Landlord's or its agent's negligence) occurring in the
Demised Premises; and (d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease; together with
all costs, liabilities and reasonable expenses incurred in or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorneys' fees and expenses. In case any action or
proceeding is brought against Landlord and/or any Superior Lessor and/or its or
their partners, joint venturers, directors, officers, agents and/or employees in
connection with conduct or management of the Demised Premises or by reason of
any claim referred to above, Tenant, upon notice from Landlord or such Superior
Lessor, shall, at Tenant's cost and expense, resist and defend such action or
proceeding by counsel reasonably satisfactory to Landlord.
13.05. Neither party shall be liable or responsible for, and each party
hereby releases the other from, all liability and responsibility to the other
and any person claiming by, through or under such party, by way of subrogation
or otherwise, for any injury, loss or damage to any person or property in or
around the Demised Premises or to the other's business irrespective of the cause
of such injury, loss or damage, and each party shall require its insurers to
include in all of such party's insurance policies which could give rise to a
right of subrogation a clause or endorsement whereby the insurer waives any
rights of subrogation against the other or permits the insured, prior to any
loss, to agree with a third party to waive any claim it may have against said
third party without invalidating the coverage under the insurance policy.
ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
judgment, shall be necessary for the reputation, safety, care or appearance of
the Land and Building, or the preservation of good order therein, or the
operation or maintenance of the Building or its equipment and fixtures, or the
Common Areas, and which do not unreasonably affect
<PAGE>
the conduct of Tenant's business in the Demised Premises; provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and any of the Rules and Regulations, the provisions of this Lease shall
control. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations against any
other tenant-or any employees or agents of any other tenant, and Landlord shall
not be liable to Tenant for violation of the Rules and Regulations by any other
tenant or its employees, agents, invitees or licensees.
ARTICLE 15 - ALTERATIONS AND SIGNS
15.01. Tenant shall not make any alterations or additions to the
Demised Premises, or make any holes or cuts in the walls, ceilings, roofs, or
floors thereof, or change the exterior color or architectural treatment of the
Demised Premises, without on each occasion first obtaining the consent of
Landlord. Tenant shall submit to Landlord plans and specifications for such work
at the time Landlord's consent is sought. Tenant shall pay to Landlord upon
demand the reasonable cost and expense of Landlord in (a) reviewing said plans
and specifications and (b) inspecting the alterations to determine whether the
same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements, including,
without limitation, the fees of any architect or engineer employed by Landlord
for such purpose. Before proceeding with any permitted alteration which will
cost more than $50,000 (exclusive of the costs of decorating work and items
constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall obtain and deliver to Landlord either (i) a
performance bond and a labor and materials payment bond (issued by a corporate
surety licensed to do business in New Jersey), each in an amount equal to 125%
of such estimated cost and in form satisfactory to Landlord, or at Tenant's
option, (ii) such other security as shall be satisfactory to Landlord. Tenant
shall fully and promptly comply with and observe the Rules and Regulations then
in force in respect of the making of alterations. Any review or approval by
Landlord of any plans and/or specifications with respect to any alterations is
solely for Landlord's benefit, and without any representation or warranty
whatsoever to Tenant in respect of the adequacy, correctness or efficiency
thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by contractors first approved by Landlord; provided, however,
that any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) designated by Landlord. Alterations shall be
made in such manner as not to unreasonably interfere with or delay and as not to
impose any additional expense upon Landlord in the construction, maintenance,
repair or operation of the Building; and if any such additional expense shall be
incurred by Landlord as a result of Tenant's making of any alterations, Tenant
shall pay any such additional expense upon demand. Throughout the making of
alterations,
<PAGE>
Tenant shall carry, or cause to be carried, worker's compensation insurance in
statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Building, under which Landlord
and its managing agent and any Superior Lessor whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with reasonably
satisfactory evidence that such insurance is in effect at or before the
commencement of alterations and, on request, at reasonable intervals thereafter
during the making of alterations.
15.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto. In placing any signs on or about the Demised Premises, Tenant
shall, at its expense, comply with all applicable Legal Requirements and obtain
all required permits and/or licenses.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01. All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant without expense to Landlord, shall not be
considered as the Tenant's Property and shall be deemed the property of
Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises, the
Building and the Common Areas resulting from any installation and/or removal of
the Tenant's Property. Any items of the Tenant's Property which shall remain in
the Demised Premises after the Expiration Date or
<PAGE>
after a period of fifteen (15) days following an earlier termination date, may,
at the option of Landlord, be deemed to have been abandoned, and in such case
such items may be retained by Landlord as its property or disposed of by
Landlord, without accountability, in such manner as Landlord shall determine at
Tenant's expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Except as specifically provided in Article 17.02 below, Tenant
shall, throughout the Term, take good care of the Demised Premises, the fixtures
and appurtenances therein, and shall not do, suffer, or permit any waste with
respect thereto. Tenant shall keep and maintain the Demised Premises including
without limitation all building equipment, windows, doors, loading bay doors and
shelters, plumbing and electrical systems, heating, ventilating and air
conditioning ("HVAC") systems (whether located in the interior of the Demised
Premises or on the exterior of the Building) in a clean and orderly condition.
Tenant shall, at Landlord's option, keep and maintain in a clean and orderly
condition all HVAC systems and any other mechanical or other systems exclusively
serving the Demised Premises which are located in whole or in part outside of
the Demised Premises (it being understood and agreed that if Landlord shall
elect to keep and maintain said systems, then the cost of same shall be included
in Operating Expenses). Tenant shall keep and maintain all exterior components
of any windows, doors, loading bay doors and shelters serving the Demised
Premises in a clean and orderly condition. The phrase "keep and maintain" as
used herein includes repairs, replacement and/or restoration as appropriate.
Tenant shall not permit or suffer any over-loading of the floors of the Demised
Premises. Tenant shall be responsible for all repairs, interior and exterior,
structural and nonstructural, ordinary and extraordinary, in and to the Demised
Premises, and the Building (including the facilities and systems thereof and the
Common Areas the need for which arises out of (a) the performance or existence
of the Tenant's Work or alterations, (b) the installation, use or operation of
the Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or (d) the act, omission, misuse or neglect
of Tenant or any of its subtenants or its or their employees, agents,
contractors or invitees. Upon request by Landlord, Tenant shall furnish Landlord
with true and complete copies of maintenance contracts and with copies of all
invoices for work performed, confirming Tenant's compliance with its obligations
under this Article. In the event Tenant fails to furnish such copies, Landlord
shall have the right, at Tenant's cost and expense, to conduct such inspections
or surveys as may be required to determine whether or not Tenant is in
compliance with this Article and to have any work required of Tenant performed
at Tenant's cost and expense. Tenant shall promptly replace all scratched,
damaged or broken doors and glass in and about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. The Tenant shall also
arrange for its own cleaning services and rubbish removal, subject to the right
of Landlord, at Landlord's option to perform such services and include the
cost of such services in Operating in Expenses. Tenant shall promptly make all
repairs in or to the Demised Premises for which Tenant is responsible, and any
repairs required to be made by Tenant to the mechanical, electrical, sanitary,
heating, ventilating, air-conditioning or other systems of the Building shall be
performed only by contractor(s) designated by Landlord. Any other repairs in or
to the Building and the facilities and systems thereof for which Tenant is
responsible shall be performed by Landlord at Tenant's expense; but Landlord
may, at its option, before commencing any such work or at any time thereafter,
require
<PAGE>
Tenant to furnish to Landlord such security, in form (including, without
limitation, a bond issued by a corporate surety licensed to do business in New
Jersey) and amount, as Landlord shall deem necessary to assure the payment for
such work by Tenant. Notwithstanding anything herein contained to the contrary,
Landlord shall be responsible for repairs to the Demised Premises caused by the
negligent acts or willful misconduct of Landlord or its agents.
17.02. So long as Tenant is not in default of this Lease, Landlord
shall make all structural repairs and replacements to the Demised Premises
(i.e., repairs to the concrete slab, load bearing walls and structure supporting
the roof membrane) at Landlord's cost and expense (unless the result of the act,
omission, misuse or neglect of Tenant or its' employees, agents, contractors or
invitees, in which case Landlord shall perform such repairs or replacements to
the structure at Tenant's expense). Further, so long as Tenant is not in default
of this Lease, Landlord shall maintain and make all repairs and/or replacements
to the roof membrane above the Demised Premises. The cost of such maintenance,
repair and/or replacement to the roof membrane shall be included in Operating
Expenses; provided, however, to the extent any such repair and/or replacement to
the roof membrane constitutes a capital improvement, Landlord shall make said
capital improvement to the roof membrane, and Tenant shall be responsible for
that portion of the cost of said capital improvement as is determined by
amortizing said cost over the useful life of the capital improvement; an annual
amount equal to the amortized cost of the capital improvement shall be paid by
Tenant, as an Operating Expense, over the then remaining Term (or extension
thereof the Lease. Landlord shall keep and maintain the Common Areas and shall
procure landscaping and snow removal services for the Building and the cost
thereof shall be included in Operating Expenses, for which Tenant shall pay
Tenant's Fraction.
17.03. Tenant shall not permit or suffer the overloading of the floors
of the Demised Premises beyond 250 pounds per square foot, or lesser amount as
may be applicable to any mezzanine area.
17.04. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building.
17.05. Notwithstanding anything herein contained in this Lease to the
contrary, Landlord hereby agrees to provide Tenant with a one (1) year warranty
with respect to the mechanical systems in the Demised Premises. The one (1) year
warranty period shall run from the Commencement Date, During the warranty
period, Landlord shall be responsible to perform all maintenance, repair and
replacement in and to the mechanical systems in the Demised Premises unless and
to the extent caused by the act, omission or negligence of Tenant, its agents,
representatives, employees, contractors or invitees, in which case Tenant shall
be responsible for such maintenance, repair or replacement. Tenant shall notify
Landlord immediately upon learning of any required repair in and to the
mechanical systems in the Demised Premises during the warranty period.
<PAGE>
ARTICLE 18 - UTILITY CHARGES
18.01. Tenant shall pay all charges for gas, water, sewer, electricity,
heat or other utility or service supplied to the Demised Premises as measured by
meters relating to Tenant's use, and any cost of repair, maintenance,
replacement, and reading of any meters measuring Tenant's consumption thereof.
If any utilities or services are not separately metered or assessed or are only
partially separately metered or assessed and are used in common with other
tenants or occupants of the Building, Tenant shall pay to Landlord on demand
Tenant's proportionate share of such charges for utilities and/or services,
which shall be such charges multiplied by a fraction the numerator of which
shall be the Floor Space in the Demised Premises and the denominator of which
shall be the Floor Space of all tenants and occupants of the Building using such
utilities and/or services. In the event Landlord determines that Tenant's
utilization of any such service exceeds the fraction referred to above, Tenant's
proportionate share with respect to such service shall, at Landlord's option,
mean the percentage of any such service (but not less than the fraction referred
to above) which Landlord reasonably estimates as Tenant's utilization thereof.
(In no event, however, shall the aggregate percentage of all tenants in the
Building using such service exceed 100%). Tenant expressly agrees that Landlord
shall not be responsible for the failure of supply to Tenant of any of the
aforesaid, or any other utility service. Landlord shall not be responsible for
any public or private telephone service to be installed in the space,
particularly conduit, if required.
18.02. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution system
or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Except for the space within the inside surfaces of all walls,
hung ceilings, floors, windows and doors bounding the Demised Premises, all of
the Building, including, without limitation, exterior Building walls, core
corridor walls and doors and any core corridor entrance, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities and the use thereof, as well
as access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided such are properly
enclosed.
19.02. Landlord and its agents shall have the right to enter and/or
pass through the Demised Premises at any time or times (a) to examine the
Demised Premises and to show them to actual and prospective Superior Lessors,
Superior Mortgagees, or prospective purchasers of the Building, and
<PAGE>
(b) to make such repairs, alterations, additions and improvements in or to the
Demised Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be required in connection
therewith, without any liability to Tenant and without any reduction of Tenant's
obligations hereunder. During the period of eighteen (18) months prior to the
Expiration Date, Landlord and its agents may exhibit the Demised Premises to
prospective tenants.
19.03. If at any time any windows of the Demised Premises are
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Building, or if any part of the
Building or the Common Areas, other than the Demised Premises, is temporarily or
permanently closed or inoperable, the same shall not be deemed a constructive
eviction and shall not result in any reduction or diminution of Tenant's
obligations under this Lease.
19.04. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from the Demised Premises, Landlord
may, without notice to Tenant, immediately enter the Demised Premises and alter,
renovate and decorate the same, without liability to Tenant and without reducing
or otherwise affecting Tenant's obligations hereunder.
19.05. Landlord reserves the right, at any time and from time to time,
to make such changes, alterations, additions and improvements in or to the
Building and the fixtures and equipment thereof as Landlord shall deem necessary
or desirable.
19.06. Landlord may adopt any name for the Building. Landlord reserves
the right to change the name and/or address of the Building at any time.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
20.01. Nothing contained in this Lease shall be construed to imply any
consent of Landlord to subject Landlord's interest or estate to any liability
under any mechanic's, construction or other lien law. If any lien or any Notice
of Intention (to file a lien), Lis Pendens, or Notice of Unpaid Balance and
Right to File Lien is filed against the Land, the Building, or any part thereof,
or the Demised Premises, or any part thereof, for any work, labor, services or
materials claimed to have been performed or furnished for or on behalf of
Tenant, or anyone holding any part of the Demised Premises through or under
Tenant, Tenant shall cause the same to be canceled and discharged of record by
payment, bond or order of a court of competent jurisdiction within thirty (30)
days after notice by Landlord to Tenant.
ARTICLE 21 - NON-LIABILITY AND INDEMNIFICATION
21.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building without
contributory negligence on the part of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors. Further, neither
<PAGE>
Landlord nor any partner, joint venturer, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
tenants or Persons other than Landlord or it's agents in, upon or about the Land
or Building, or caused by operations in construction of any private, public or
quasi-public work; or (b) even if negligent, for consequential damages arising
out of any loss of use of the Demised Premises or any equipment or facilities
therein by Tenant or any Person claiming through or under Tenant.
21.02. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord or its agents) in the
Demised Premises during the Term or during the period of time, if any, prior to
the Commencement Date that Tenant may have been given access to the Demised
Premises; (b) any act, omission or negligence of Tenant or any of its subtenants
or licensees or its or their partners, joint venturers, directors, officers,
agents, employees or contractors; (c) any accident, injury or damage whatever
(unless caused solely by Landlord or its agent's negligence) occurring in the
Demised Premises; and (d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease; together with
all costs, liabilities and reasonable expenses incurred in or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorneys' fees and expenses. In case of any action
or proceeding is brought against Landlord and/or any Superior Lessor and/or its
or their partners, joint venturers, directors, officers, agents and/or employees
by reason of any such claim, Tenant, upon notice from Landlord or such Superior
Lessor, shall resist and defend such action or proceeding (by counsel reasonably
satisfactory to Landlord).
21.03. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas, and Tenant agrees that the liability of Landlord arising out
of or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas shall be limited to
such estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord or any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of,
or in connection with, this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas and if Tenant shall
acquire a lien on or interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to Landlord an
instrument to that effect prepared by Landlord's attorneys. Tenant hereby waives
the right of specific performance and any other remedy allowed in equity if
specific performance or such other remedy could result in any liability of
Landlord for the payment of money to Tenant, or to any court or governmental
authority (by way of fines or otherwise) for Landlord's failure or refusal to
observe a judicial decree or determination, or to any third party.
<PAGE>
ARTICLE 22 - DAMAGE OR DESTRUCTION
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
22.02. Subject to the provisions of Section 22.05, if all or part of
the Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises for
the period from the date of the damage or destruction to (a) the date the damage
to the Demised Premises shall be substantially repaired, or (b) if the Building
and not the Demised Premises is so damaged or destroyed, the date on which the
Demised Premises shall be made tenantable; provided, however, should Tenant
reoccupy a portion of the Demised Premises during the period the repair or
restoration work is taking place and prior to the date that the Demised Premises
are substantially repaired or made tenantable the Rent allocable to such
reoccupied portion, based upon the proportion which the area of the reoccupied
portion of the Demised Premises bears to the total area of the Demised Premises,
shall be payable by Tenant from the date of such occupancy.
22.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty (whether or not the Demised
Premises are damaged or destroyed) that its repair or restoration requires the
expenditure, as estimated by a reputable contractor or architect designated by
Landlord, of more than twenty percent (20%) (or ten percent [10%] if such
casualty occurs during the last two [2] years of the Tenn) of the full insurable
value of the Building immediately prior to the casualty, or (c) the Building
shall be damaged or destroyed by fire or other casualty (whether or not the
Demised Premises are damaged or destroyed) and either the loss shall not be
covered by Landlord's insurance or the net insurance proceeds (after deducting
all expenses in connection with obtaining such proceeds) shall, in the
estimation of a reputable contractor or architect designated by Landlord be
insufficient to pay for the repair or restoration work, then in either such case
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the fire or other casualty.
22.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article 22.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as not unreasonably to interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do such
repair or restoration work except during Landlord's business hours on business
days.
<PAGE>
22.05. Notwithstanding any of the foregoing provisions of this Article
22, if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Demised Premises or the Building by fire or other casualty,
or (b) the Demised Premises or the Building shall be damaged or destroyed or
rendered completely or partially untenantable on account of fire or other
casualty, then, without prejudice to any other remedies which may be available
against Tenant, there shall be no abatement or reduction of the Rent. Further,
nothing contained in this Article 22 shall relieve Tenant from any liability
that may exist as a result of any damage or destruction by fire or other
casualty.
22.06. Landlord will not carry insurance of any kind on the Tenant's
Property and, except as provided by law or by reason of Landlord's breach of any
of its obligations hereunder or as a result of Landlord's gross negligence or
wilful misconduct, shall not be obligated to repair any damage to or replace the
Tenant's Property.
22.07. The provisions of this Article 22 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
22.08. Notwithstanding anything herein contained to the contrary, but
subject to the rights provided Landlord in Section 22.03, Landlord hereby agrees
to advise Tenant ("Landlord's Notice"), within sixty (60) days of the date of
any fire or other casualty, as to whether or not Landlord is able to and intends
to restore the Demised Premises to a tenantable condition within twelve (12)
months from the date of Landlord's Notice. In the event Landlord advises Tenant
that it cannot so restore the Demised Premises within said twelve (12) month
period, Tenant shall have the right to terminate this Lease, by written notice
to Landlord to that effect, which right must be exercised within twenty (20)
days of the receipt of Landlord's Notice (provided, however, Tenant shall have a
period of up to sixty (60) days from the date of Tenant's notice to vacate the
Demised Premises and will so advise Landlord of the date of vacation in said
notice). In the event Landlord advises Tenant that it is able to restore the
Premises within said twelve (12) month period, or, in the event Tenant fails to
so advise Landlord within the twenty (20) day period that it desires to
terminate the Lease, then the provisions of Article 22.01 through 22.07 shall
control. Further, to the extent any fire or other casualty occurs in the last
year of the Term and, as a direct and proximate result of said fire or casualty,
Tenant cannot reasonably operate its business at the Demised Premises, Tenant
shall be permitted to terminate this Lease by notice to Landlord to that effect.
ARTICLE 23 - EMINENT DOMAIN
23.01 If the whole of the Demised Premises shall be taken by any public
or quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If 25% or less of the Floor Space of the
<PAGE>
Demised Premises shall be so taken or conveyed, this Lease shall terminate only
in respect of the part so taken or conveyed as of the day possession shall be
taken by such authority. If more than 25% of the Floor Space of the Demised
Premises shall be so taken or conveyed, this Lease shall terminate only in
respect of the part so taken or conveyed as of the day possession shall be taken
by such authority, but either party shall have the right to terminate this Lease
upon notice given to the other party within 30 days after such taking
possession. If more than 25% of the Floor Space of the Building shall be so
taken or conveyed, Landlord may, by notice to Tenant, terminate this Lease as of
the day possession shall be taken. If so much of the parking facilities shall be
so taken or conveyed that the number of parking spaces necessary, in Landlord's
judgment, for the continued operation of the Building shall not be available,
Landlord shall, by notice to Tenant, terminate this Lease as of the day
possession shall be taken. If this Lease shall continue in effect as to any
portion of the Demised Premises not so taken or conveyed, the Rent shall be
computed as of the day possession shall be taken on the basis of the remaining
Floor Space of the Demised Premises. Except as specifically provided herein, in
the event of any such taking or conveyance there shall be no reduction in Rent.
If this Lease shall continue in effect, Landlord shall, at its expense, but
shall be obligated only to the extent of the net award or other compensation
(after deducting all expenses in connection with obtaining same) available to
Landlord for the improvements taken or conveyed (excluding any award or other
compensation for land or for the unexpired portion of the term of any Superior
Lease), make all necessary alterations so as to constitute the remaining
Building a complete architectural and tenantable unit, except for the Tenant's
Property, and Tenant shall make all alterations or replacements to the Tenant's
Property and decorations in the Demised Premises. All awards and compensation
for any taking or conveyance, whether for the whole or a part of the Land or
Building, the Demised Premised or otherwise, shall be the property of Landlord,
and Tenant hereby assigns to Landlord all of Tenant's right, title and interest
in and to any and all such awards and compensation, including, without
limitation, any award or compensation for the value of the unexpired portion of
the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's Property and for loss of business, good will, and depreciation or
injury to and cost of removal of the Tenant's Property, but only if such award
or compensation shall be made by the condemning authority in addition to, and
shall not result in a reduction of, the award or compensation made by it to
Landlord.
23.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full] when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award or payment which represents
compensation for the use and occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date. All monies to be paid to Tenant
<PAGE>
as, or as part of, an award or payment for temporary use and occupancy for a
period beyond the date to which the Rent has been paid shall be received, held
and applied by the first Superior Mortgagee (or if there is no Superior
Mortgagee, by Landlord as a trust fund) for payment of the Rent becoming due
hereunder.
ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove all of Tenant's Property therefrom except as otherwise
expressly provided in this Lease.
24.02. If Tenant remains in possession of the Demised Premises after
the expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises at the sufferance of Landlord subject to all of the provisions of this
Lease, except that the monthly Fixed Rent shall be twice the Fixed Rent in
effect during the last month of the Term, plus 1/12th of the average annual
Percentage Rent for the immediately preceding three (3) full Calendar Years (or
for the entire Term if less than three (3) full Calendar Years).
24.03. No act or thing done by Landlord or its agents shall be deemed
an acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 25 - CONDITIONS OF LIMITATION
25.01. This Lease is subject to the limitation that whenever Tenant or
any Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within sixty (60) days after
entry, or (c) shall cause, suffer, permit or consent to the appointment of a
receiver, trustee, administrator, conservator, sequestrator, liquidator or
similar official in any federal, state or foreign judicial or nonjudicial
proceeding, to hold, administer and/or liquidate all or substantially all of its
assets, and such appointment shall not have been revoked, terminated, stayed or
vacated and such official discharged of his duties within sixty (60) days of his
appointment, then Landlord, at any time after the occurrence of any such event,
may give Tenant a notice of intention to end the Term at the expiration of five
(5) days from the date of service of such notice of intention, and upon the
expiration of said five (5) day period, whether or not the Term shall
theretofore have commenced, this Lease shall terminate with the same effect as
if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 27.
<PAGE>
25.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, or (b) if Tenant shall, whether
by action or inaction, be in default of any of its obligations under this Lease
(other than a default in the payment of Rent) and such default shall continue
and not be remedied within twenty (20) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a default which cannot
with due diligence be cured within- a period of twenty (20) days and the
continuance of which for the period required for cure will not subject Landlord
or any Superior Lessor to prosecution for a crime (as more particularly
described in the last sentence of Section 12.02) or termination of any Superior
Lease or foreclosure of any Superior Mortgage, if Tenant shall not, (i) within
said twenty (20) day period advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (ii) duly commence within said twenty
(20) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default, and (iii) complete such remedy within a
reasonable time after the date of said notice by Landlord, or (c) if any event
shall occur or any contingency shall arise whereby this Lease would, by
operation of law or otherwise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by Article 11, or
(d) if Tenant shall vacate or abandon the Demised Premises, or (e) if there
shall be any default by Tenant (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Tenant) under any
other lease with Landlord (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Landlord) which
shall not be remedied within the applicable grace period, if any, provided
therefor under such other lease, then in any of said cases Landlord may give to
Tenant a notice of intention to end the Term at the expiration of five (5)
business days from the date of the service of such notice of intention, and upon
the expiration of said five (5) business days, whether or not the Term shall
theretofore have commenced, this Lease shall terminate with the same effect as
if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 27.
ARTICLE 26 - RE-ENTRY BY LANDLORD
26.01. If Tenant shall default in the payment of any Rent, or if this
Lease shall terminate as provided in Article 25, Landlord or Landlord's agents
and employees may immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
Person therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises. The word "reenter," as used herein, is not restricted to its technical
legal meaning. If this Lease is terminated under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceedings or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the Rent payable up to the time of such termination of
this Lease, or of such recovery of possession of the Demised Premises by
Landlord, as the case may be, and shall also pay to Landlord damages as
provided' in Article 27.
26.02. In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord
<PAGE>
may resort hereunder are cumulative and are not intended to be exclusive of any
other remedies to which Landlord may lawfully be entitled at any time and
Landlord may invoke any remedy allowed at law or in equity as if specific
remedies were not provided for herein.
26.03. If this Lease shall terminate under the provisions of Article
25, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 26, or in the event of the termination of this Lease, or of
reentry, by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all monies, if any, paid by Tenant to Landlord,
whether as Advance Rent, security or otherwise, but such monies shall be
credited by Landlord against any Rent due from Tenant at the time of such
termination or re-entry or, at Landlord's option, against any damages payable by
Tenant under Article 27 or pursuant to law,
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated under the provisions of Article 25
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of (i) the aggregate amount of the Rent which would
have been payable by Tenant (conclusively presuming the average monthly
Percentage Rent and Additional Charges to be the same as were the average
monthly Percentage Rent and Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date, over (ii) the aggregate
rental value of the Demised Premises for the same period; or
(b) sums equal to the Fixed Rent, Percentage Rent (in the same monthly
amount as the average monthly Percentage Rent payable for the year, or if less
than three hundred sixty five (365) days have then elapsed since the
Commencement Date, the partial year, immediately preceding such termination or
re-entry) and the Additional Charges which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such relenting the expenses incurred or paid by
Landlord in terminating this Lease or in reentering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new tenants,
brokers' commissions, reasonable legal fees, and all other expenses properly
chargeable against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for
<PAGE>
a period shorter or longer than the period ending on the Expiration Date; but in
no event shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled
in any suit for the collection of damages pursuant to this subsection (b) to a
credit in respect of any rents from a reletting, except to the extent that such
net rents are actually received by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper appointment
on a square foot basis shall be made of the rent received from such reletting
and of the expenses of reletting; or
(c) a sum which at the time of such termination of this Lease or at the
time of any such reentry by Landlord, as the case may be, represents the
aggregate amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be the same as
were the average monthly Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date; provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new tenants,
brokers' commissions, reasonable legal fees, and all other expenses properly
chargeable against the Demised Premises and the rental therefrom, it being
understood that any such relenting may be for a period shorter or longer than
the period ending on the Expiration Date; but in no event shall Landlord have to
account to Tenant for any rents in excess of the total damages recovered by
Landlord hereunder, nor shall Tenant be entitled in any suit for the collection
of damages pursuant to this subdivision (c) to a credit in respect of any rents
from a reletting, except to the extent that such net rents are actually received
by Landlord. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot basis
shall be made of the rent received from such reletting and of the expenses of
reletting.
If the Demised Premises or any part thereof should be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure to relet the Demised Premises or any part thereof, or
if the Demised Premises or any part thereof are relet, for its failure to
collect the rent under such reletting, and no such failure to relet or failure
to collect rent shall release or affect Tenant's liability for damages or
otherwise under this Lease. Furthermore, Tenant, on behalf of itself and any and
all persons claiming through or under Tenant, does hereby waive and surrender
all right and privilege which it, they or any of them might have under or by
reason of any present or future law or applicable governmental or judicial
authority, to require that Landlord mitigate damages sustained or to be
sustained by Landlord hereunder as a result of a default by Tenant and/or any
and all persons claiming through or under Tenant under this Lease. In the event
Tenant, on behalf of itself or any and all persons claiming through or under
Tenant, attempts to raise a defense or assert any affirmative obligations on
Landlord's part to
<PAGE>
mitigate such damages or relet the Demised Premises, Tenant shall reimburse
Landlord for any costs and expenses incurred by Landlord as a result of any such
defense or assertion, including but not limited to Landlord's attorneys' fees
incurred in connection therewith.
27.02. Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term would have expired if it
had not been so terminated under the provisions of Article 25, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
damages by reason of the termination of this Lease or re-entry of the Demised
Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time, whether or
not such amount be greater than, equal to, or less than any of the sums referred
to in Section 27.01.
27.03. In addition, if this Lease is terminated under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 26, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof, and (c) for the breach of any
covenant of Tenant set forth above in this Section 27.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor reasonably
selected by Landlord).
27.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 27, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid upon demand therefor, the same shall bear
interest at the Late Payment Rate or the maximum rate permitted by law,
whichever is less, from the due date thereof until paid, and the amounts of such
interest shall be Additional Charges hereunder.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Demised Premises or to have a continuance of this
Lease after being lawfully dispossessed or ejected from the Demised Premises by
process of law or under the terms of this Lease or after the termination of this
Lease as provided in this Lease.
<PAGE>
28.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised premisses and use of the Common Area, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose- any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises, except for those claims which would be waived if not then interposed.
ARTICLE 29 - NO WAIVERS
29.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future or the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent,
Percentage Rent or Additional Charges with knowledge of breach by Tenant of any
obligation of this Lease shall not be deemed a waiver of such breach.
ARTICLE 30 - CURING TENANT'S DEFAULTS
30.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease after the applicable notice and cure periods
provided in this Lease, if any, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable attorneys' fees and expenses,
involved in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such reasonable cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Demised Premises after default by Tenant or upon the expiration of the Term
or sooner termination of this Lease, and interest on all sums advanced by
Landlord under this Article at the Late Payment Rate or the maximum rate
permitted by law, whichever is less, may be sent by Landlord to Tenant monthly,
or immediately, at Landlord's option, and such amounts shall be due and payable
in accordance with the terms of such bills.
ARTICLE 31 - BROKER
31.01. Landlord and Tenant represent to each other that no broker
except the Broker was instrumental in bringing about or consummating this Lease
and that neither party had any conversations or negotiations with any broker
except the Broker concerning the leasing of the Demised Premises. Landlord and
Tenant each agree to indemnify and hold the other harmless
<PAGE>
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without limitation,
attorneys' fees and expenses, arising out of any conversations or negotiations
had by Landlord or Tenant, as the case may be, with any broker other than the
Broker.
ARTICLE 32 - NOTICES
32.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, or nationally recognized
overnight courier service addressed to the other party at the address
hereinabove set forth as to Landlord, to the attention of General Counsel with a
concurrent notice to the attention of Controller, and shall be deemed to have
been given, rendered or made, in the case of a mailing, on the second business
day after the day so mailed, unless mailed outside the State of New Jersey, in
which case it shall be deemed to have been given, rendered or made on the fifth
business day after the day so mailed, and in the case of overnight carrier, upon
receipt. Either party may, by notice as aforesaid, designate a different address
or addresses for notices, statements, demands, consents, approvals or other
communications intended for it. In addition, upon and to the extent requested in
writing by Landlord, copies of notices shall be sent to the Superior Mortgagee.
ARTICLE 33 - ESTOPPEL CERTIFICATES
33.01. Each party shall, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior written
notice, execute and deliver to the requesting party a statement certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 34 - ARBITRATION
34.01. Landlord may at any time request arbitration, and Tenant may at
any time when not in default in the payment of any Rent request arbitration, of
any matter in dispute but only where arbitration is expressly provided for in
this Lease. The party requesting arbitration shall do so by
<PAGE>
giving notice to that effect to the other party, specifying in said notice the
nature of the dispute, and said dispute shall be determined in Newark, New
Jersey, by a single arbitrator, in accordance with the rules then obtaining of
the American Arbitration Association (or any comparable organization designated
by Landlord). The award in such arbitration may be enforced on the application
of either party by the order or judgment of a court of competent jurisdiction.
The fees and expenses of any arbitration shall be borne by the parties equally,
but each party shall bear the expense of its own attorneys and experts and the
additional expenses of presenting its own proof If Tenant gives notice
requesting arbitration as provided in this Article, Tenant shall simultaneously
serve a duplicate of the notice on each Superior Mortgagee and Superior Lessor
whose name and address shall previously have been furnished to Tenant, and such
Superior Mortgagees and Superior Lessor shall have the right to participate in
such arbitration.
ARTICLE 35 - MEMORANDUM OF LEASE
35.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such memorandum
of Lease shall pay all recording costs and expenses, including any taxes that
are due upon such recording.
ARTICLE 36 - MISCELLANEOUS
36.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith. The submission of this Lease to Tenant does not
constitute by Landlord a reservation of, or an option to Tenant for, the Demised
Premises, or an offer to lease on the terms set forth herein and this Lease
shall become effective as a lease agreement only upon execution and delivery
thereof by Landlord and Tenant.
36.02. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
<PAGE>
36.03. If Tenant shall at any time request Landlord to sublet or let
the Demised Premises for Tenant's account, Landlord or its agent is authorized
to receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting, except if the direct and proximate result of the
gross negligence or willful misconduct of Landlord or it's agents.
36.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 36.04
shall not be construed as modifying the conditions of limitation contained in
Article 25.
36.05. Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any of its respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any Unavoidable Delay. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the matters
set forth in the first sentence of this Section 36.05, or (b) because of any
failure or defect in the supply, quality or character of electricity, water or
any other utility or service furnished to the Demised Premises for any reason
beyond Landlord's reasonable control.
36.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
36.07. If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
36.08. If an excavation shall be made upon land adjacent to or under
the Building, or shall be authorized to be made, Tenant shall afford to the
Person causing or authorized to cause such excavation, license to enter the
Demised Premises for the purpose of performing such work as said Person shall
reasonably deem necessary or desirable to preserve and protect the Building from
injury or damage and to support the same by proper foundations, without any
claim for damages or liability against Landlord and without reducing or
otherwise affecting Tenant's obligations under this Lease. Landlord shall
exercise its rights hereunder so as to minimize any interference with Tenant's
business operation at the Demised Premises.
36.09. Tenant shall not exercise its rights under Article 15 or any
other provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage,
<PAGE>
picketing, labor disruption or dispute or any interference with the business of
Landlord or any tenant or occupant of the Building.
36.10. Tenant shall give prompt notice to Landlord upon Tenant's
becoming aware of (a) any occurrence in or about the Demised Premises for which
Landlord might be liable, (b) any fire or other casualty in the Demised
Premises, (c) any damage to or defect in the Demised Premises, including the
fixtures and equipment thereof, for the repair of which Landlord might be
responsible, and (d) any damage to or defect in any part of the Building's
sanitary, electrical, heating, ventilating, air-conditioning, elevator or other
systems located in or passing through the Demised Premises or any part thereof.
36.11. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. Tenant hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Lease may be
brought in the Courts of the State of New Jersey, or the Federal District Court
for the District of New Jersey, as Landlord may elect. By execution and delivery
of this Lease, Tenant hereby irrevocably accepts and submits generally and
unconditionally for itself and with respect to its properties, to the
jurisdiction of any such court in any such action or proceeding, and hereby
waives in the case of any such action or proceeding brought in the courts of the
State of New Jersey, or Federal District Court for the District of New Jersey,
any defenses based on jurisdiction, venue or forum non conveniens. If any
provision of this Lease shall be invalid or unenforceable, the remainder of this
Lease shall not be affected and shall be enforced to the extent permitted by
law. The table of contents, captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. If
any words or phrases in this Lease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Lease shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Lease and no implication or inference
shall be drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. Each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed, shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require. Tenant
specifically agrees to pay all of Landlord's reasonable costs, charges and
expenses, including attorneys' fees, incurred in connection with any document
review requested by Tenant and upon submission of bills therefor. In the event
Landlord permits Tenant to examine Landlord's books and records with respect to
any Additional Charge imposed under this Lease, such examination shall be
conducted at Tenant's sole cost and expense and shall be conditioned upon Tenant
retaining an independent accounting firm for such purposes which shall not be
compensated on any type of contingent fee basis with respect to such
examination. Wherever in this Lease or by law Landlord is authorized to charge
or recover costs and expenses for legal services or attorneys' fees, same shall
include, without limitation, the costs and expenses for in-house or staff legal
counsel or outside counsel at rates not to exceed the reasonable and customary
charges for any such services as would be imposed in an arms length third party
agreement for such services.
<PAGE>
36.12. Within thirty (30) days of each anniversary date of this Lease,
Tenant shall annually furnish to Landlord a copy of its then current audited
financial statement which shall be employed by Landlord for purposes of
financing the Premises and not distributed otherwise without prior authorization
of Tenant. Any material adverse change of Tenant's financial condition shall be
furnished to Landlord in writing forthwith and without request by Landlord for
same.
36.13. (i) At least ninety (90) days prior to Tenant's termination of
its lease, and any extensions thereof, Tenant agrees to seek a determination
from the New Jersey Department of Environmental Protection and Energy ("NJDEPE")
in the form of a Letter of Non-applicability ("LNA"), that the New Jersey
Industrial Site Recovery Act, N.J. S.A. 13: 1 K-6 et seq. ("ISRA"), is
inapplicable to the Tenant's cessation of operations and termination of its
lease. Tenant represents, warrants, and covenants that any information contained
in any application for an LNA submitted pursuant to this subsection will be true
and complete. Tenant represents that the Standard Industrial Classification
(SIC) number applicable to Tenant's operations would not subject this
transaction to the requirements of ISRA.
(ii) In the event that an LNA is denied by NJDEPE, notice of such
denial will be given to Landlord within two (2) business days of Tenant's
receipt of NJDEPE's denial of the LNA. Tenant shall satisfy its obligations
under ISRA prior to its lease termination date: (1) by securing an approval of
the Tenant's Negative Declaration; or (2) by securing an approval of the
Tenant's Remedial Action Work plan, and completing the implementation of such
Plan, and obtaining from NJDEPE a "No Further Action" letter. Tenant shall bear
sole responsibility for any investigation and cleanup costs, fees, penalties, or
damages associated with ISRA compliance. In the event that Tenant is unable to
complete its ISRA compliance obligations by the date of its lease termination,
Landlord shall continue to provide Tenant with reasonable access to the Demised
Premises, provided that any work undertaken by Tenant shall be performed in such
a manner as to minimize interference with Landlord's or any other tenant's use
of the Demised Premises. However, Landlord reserves its rights to deem Tenant a
holdover tenant in the event that Tenant's ISRA compliance unreasonably
restricts the Landlord's use of the Demised Premises.
(iii) Tenant shall provide Landlord with copies of all correspondence,
documents and reports, including sampling results submitted to or received from
any governmental agency or third party in connection with Tenant's compliance
with ISRA.
(iv) Landlord represents and warrants that as of the Commencement Date,
it has no knowledge of any ISRA violations relative to the Demised Premises.
(v) Tenant shall not be responsible for any violation of ISRA for
circumstances that exist prior to the Commencement Date or violations of ISRA
caused solely by Landlord or its agents' willful acts.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duty executed this Lease
as of the day and year first above written.
HARTZ MOUNTAIN ASSOCIATES
BY: HARTZ MOUNTAIN INDUSTRIES, INC.
("Landlord")
BY: /s/ Irwin A. Horowitz
----------------------------------------
[Corporate Seal] Irwin A. Horowitz
Executive Vice President
JENNA LANE, INC.
("Tenant")
BY: /s/ Mitchell Dobies
----------------------------------------
[Corporate Seal] Mitchell Dobies
Vice Chairman and Co-Chief Executive Officer
<PAGE>
RIDER TO LEASE DATED October 13, 1998, BETWEEN HARTZ MOUNTAIN ASSOCIATES, AS
LANDLORD AND JENNA LANE, INC., AS TENANT.
R1. If any of the provisions of this Rider shall conflict with any of
the provisions, printed or typewritten, of this Lease, such conflict shall
resolve in every instance in favor of the provisions of this Rider.
R2. Tenant shall have the right, subject to compliance by Tenant with
all Legal Requirements, to operate a warehouse outlet store in a portion of the
Demised Premises containing not more than 2000 square feet of Floor Space
(hereinafter referred to as the "Retail Premises"). In the event Tenant operates
such outlet store, Tenant shall pay to Landlord, in addition to the Fixed Rent,
a "Percentage Rent" (as hereinafter provided):
a. Percentage Rent: The amount for any period computed in
accordance with the provisions of Paragraph f. hereof.
b. Percentage Rent Rate: Five percent (5%).
c. Calendar Quarter: Any three-month period commencing on either
a January 1, an April 1, a July 1 or an October 1.
d. Gross Sales: The dollar aggregate of. (a) the actual sales
price of all goods and merchandise sold, leased or licensed
and the charges for all services performed by Tenant or
otherwise in connection with all business conducted at or from
the Retail Premises, whether made for cash, by check, credit
or otherwise, without reserve or deduction for inability or
failure to collect the same, including, without limitation,
sales and services (i) where the orders therefor originate at
or are accepted at or from the Retail Premises, whether
delivery or performance thereof is made at or from the Retail
Premises or any other place, it being understood that all
sales made and orders received at or from the Retail Premises
shall be deemed to have been made and completed therein even
though the orders are fulfilled elsewhere or the payments of
account are transferred to some other office for collection,
(ii) where the orders therefor result from solicitation off
the Retail Premises but which are conducted by personnel
operating from or reporting to or under the control or
supervision of any person at the Retail Premises, (iii)
pursuant to mail, telegraph, telephone or other similar orders
received or billed at or from the Retail Premises, and (iv) by
means of mechanical or other vending devices located at the
Retail Premises, and (b) all monies or other things of value
received by Tenant from its operations at the Retail Premises
(which are not excluded from Gross Sales by the next
succeeding sentence) including all finance charges, cost of
gift or merchandise certificates and all deposits not refunded
to customers. Gross Sales shall not include (x) the exchange
of merchandise between stores of Tenant where such exchange is
made solely for the convenient operation of Tenant's business
and neither for the purpose of depriving Landlord of the
benefits of a sale which would otherwise be made at or from
the
<PAGE>
Retail Premises nor for the purpose of consummating a sale
which has been theretofore made at or from the Retail
Premises, (y) sales of trade fixtures which are not part of
Tenant's stock in trade and not sold in the regular course of
Tenant's business, or (z) the amount of any city, county,
state or federal sales tax, luxury tax or excise tax on sales
if the tax is added to the selling price and separately stated
and actually paid to the taxing authority by Tenant; provided,
however, no franchise or capital stock tax and no income or
similar tax based upon income, profits or Gross Sales shall be
deducted from Gross Sales in any event whatsoever. Cash or
credit refunds made upon transactions included within the
Gross Sales, but not exceeding the selling price of
merchandise returned by the purchaser and accepted by Tenant,
shall be deducted from the Gross Sales for the period when
such refunds are made. Further excluded from Gross Sales shall
be Tenant's accounts receivable consisting of bad checks and
bad debts provided, however, if such accounts are actually
collected later, the amounts should be included in Gross Sales
at such time. Each charge or sale upon installment or credit
or layaway, so called, shall be treated as a sale for the full
price in the month during which such charge or sale shall be
made, irrespective of the time when Tenant shall receive
payment from its customer. Each lease or rental or license of
merchandise to customers shall be treated as a sale in the
month in which the lease, rental or license is made for a
price equal to the total rent of license fee payable. For
purposes of this paragraph the word "Tenant" shall
include any of Tenant's subtenants, concessionaires and
licensees.
e. Breakpoint: An amount at an annual rate of $500,000.00.
f. Within fifteen (15) days after the end of each calendar month
during the Term, Tenant shall submit to Landlord a statement
certified by Tenant (by an authorized officer if Tenant is a
corporation or by a partner if Tenant is a partnership)
stating the Gross Sales (including an itemization of all
claimed deductions therefrom) for such month. Within fifteen
(15) days after the end of each Calendar Quarter, Tenant
shall pay to Landlord as Percentage Rent the amount, if any,
by which the aggregate Gross Sales for the Calendar Year in
which such Calendar Quarter occurs up to the end of such
Calendar Quarter exceeds the Breakpoint for such period, or a
pro-rata portion thereof for a partial Calendar Quarter, if
applicable, multiplied by the Percentage Rent Rate. Within
ninety (90) days after the end of each Calendar Year,
including any partial Calendar Year at the beginning of the
Term, and after the end of the Term, Tenant shall submit to
Landlord a statement certified by an independent certified
public accountant stating the Gross Sales (including an
itemization of all claimed deductions therefrom) and the
Percentage Rent for such Calendar Year, or partial Calendar
Year if the Term shall begin on a date other than a January
1st and/or end on a date other than a December 31st, as the
case may be, and if the Percentage Rent so stated for such
period is more or less than the Percentage Rent paid for such
period, Tenant shall pay to Landlord the deficiency, or
Landlord shall refund to Tenant the excess, within twenty (20)
days after submission of such statement of Gross Sales. For at
least thirty-six (36) months after the expiration of each
Calendar Year, including any partial Calendar Year at the
beginning of the
<PAGE>
Term, and after the end of the Term, Tenant shall keep and
maintain (and shall cause all subtenants, concessionaires and
licensees to keep and maintain) in the Retail Premises or the
main office of Tenant full and accurate books of account and
records from which the Gross Sales can be determined. The
books and records maintained shall include, but shall not be
limited to (i) cash register tapes showing continuous grand
total (from a sealed cash register), (ii) original source
documents, (iii) sequentially numbered receipts, (iv) federal,
state & local tax returns, (v) receipts from daily bank
deposits, (vi) computer printouts and (vii) bank statements.
Landlord shall have the right from time to time during such
thirty-six (36) month period to inspect and audit all such
books and records relating to Gross Sales, and Tenant, each
subtenant, concessionaire and licensee will produce the same
on request of Landlord. If any such inspection and audit
discloses that the Gross Sales were understated, Tenant shall
forthwith pay to Landlord any additional Percentage Rent shown
to be payable, and if the Gross sales for any Calendar Year or
partial Calendar Year were understated by more than One
Thousand Dollars ($ 1,000.00), Tenant shall also pay the cost
of Landlord's inspection and audit. In the event such
inspection audit discloses that Gross Sales were overstated,
that is, that Tenant overpaid Percentage Rent, Landlord shall
refund such overpayment (or credit same against Percentage
Rent then becoming due and owing) provided, however, Tenant
shall remain liable for the costs of Landlord's inspection and
audit not to exceed the greater of (a) $2,000.00 or (b) the
amount of the refund and/or credit. Landlord does not in any
way, or for any purpose, become a partner or joint venturer
with Tenant hereunder. The provisions of this Lease relating
to Percentage Rent are included solely for the purpose of
providing a method whereby rentals are to be measured and
ascertained.
g. Notwithstanding anything herein contained in subsection R2.(f)
to the contrary, Landlord and Tenant hereby agree that for the
first two (2) years of the Term, Tenant shall be permitted, in
lieu of providing a "statement certified by Tenant... stating
Gross Sales. . .," to submit a letter to Landlord, on Tenant's
stationary, whereby an officer of Tenant verifies the Gross
Sales of Tenant. Accompanying the letter will be a copy of
Tenant's bank account statement(s) which bank account or
accounts Tenant hereby agrees to establish (and segregate)
solely for the purpose of recording transactions, including
deposits and debits, relative to Tenant's retail operation at
the Demised Premises. Tenant shall make payments of Percentage
Rent in accordance with the procedure described in subsection
R2.(f) based upon the Tenant's letter and bank accounts.
Thereafter, i.e., after the second year of the Term, the
provisions of subsection R2.(f) as originally stated shall
apply with respect to Tenant's reporting and payment of Gross
Sales.
h. To the extent Tenant's fiscal year is different from a
Calendar Year, Tenant's "end of the Calendar Year"
reconciliation may be performed at the end of Tenant's fiscal
year provided that Tenant's obligation to pay Percentage Rent
shall continue up to and including the Expiration Date of this
Lease. This provision shall survive the termination of the
Lease.
<PAGE>
R3. Landlord shall use its best efforts to provide Tenant with access
to the Demised Premises on November 1, 1998, primarily for the purpose of
allowing Tenant to prepare the Demised Premises for it's occupancy. To the
extent Tenant so occupies the Demised Premises on or prior to the Commencement
Date such occupancy shall be upon all of the terms and conditions of this Lease
as if it had commenced except that Tenant shall not be obligated to pay Rent
until the Commencement Date. Furthermore, Tenant hereby acknowledges that
Landlord will be performing Landlord's Work in the Demised Premises prior to the
Commencement Date; Tenant hereby agrees that it shall not interfere with the
completion of Landlord's Work and shall cooperate with Landlord in order that
Landlord might complete said work in a timely fashion.
R4. Provided this Lease has been executed by Tenant on or prior to
October 9, 1998, Landlord hereby agrees that if and to the extent Landlord has
not substantially completed Landlord's Work on or prior to February 1, 1999,
Tenant shall be entitled to an abatement of Rent for a period of one (1) day for
each day after February 1, 1999 that Landlord has not substantially completed
Landlord's Work. The provisions of this section shall be subject to the terms
and conditions of Article 36.05 of the Lease; that is, to the extent substantial
completion of Landlord's Work is delayed due to an Unavoidable Delay, then, the
February 1, 1999 deadline shall be extended one (1) day for each day of
Unavoidable Delay. Tenant shall use its best efforts to cooperate with Landlord,
including but not limited to the exchanging of any information or documentation
or approvals so required, in connection with the completion of Landlord's Work.
The provisions of this section shall also be subject to Article 5.02 of the
Lease.
HARTZ MOUNTAIN ASSOCIATES
By: HARTZ MOUNTAIN INDUSTRIES, INC.
("Landlord")
By: /s/ Irwin A. Horowitz
----------------------------------------
Irwin A. Horowitz
Executive Vice President
JENNA LANE, INC.
("Tenant")
By: /s/ Mitchell Dobies
----------------------------------------
Name:Mitchell Dobies
Title:Vice Chairman and
Co-Chief Executive Officer
<PAGE>
EXHIBIT A[DRAWING]
EXHIBIT B
DEED DESCRIPTION
900 SECAUCUS ROAD
(LOT 3, BLOCK 22)
Deed description of a parcel of land situate along the southerly side of
Secaucus Road in the Town of Secaucus, Hudson County, New Jersey.
Beginning at a point on the southerly side of Secaucus Road (60' wide), said
point being N 68 degrees 17' 22" W 658.00 feet along the southerly side of
Secaucus Road (60' wide) from its intersection with the westerly side of
Enterprise Avenue South (60' wide) and running; thence
1. S 21 degrees 42' 38" W 503.73 feet along the westerly side of
a 24' wide Railroad Right of Way to a point; thence
2. N 68 degrees 17' 22" W 480.27 feet to a point; thence
3. N 19 degrees 20' 54" W 97.29 feet to a point of curvature;
thence
4. Along a curve to the Right having a radius of 310.00 feet,
an arc length of 51.10 feet to a point on curve; thence
5. S 70 degrees 39' 06" W 80.87 feet to a point on curve; thence
6. Along a curve to the Right having a radius of 390.00 feet, an
arc length of 228.44 feet along the westerly side of an
ingress and egress easement to a point of tangency; hence
7. N 21 degrees 42' 38" E 186.76 feet still along the westerly
side of an ingress and egress easement to a point of
curvature; thence
8. Along a curve to the left having a radius of 40.00 feet, an
arc length of 62.83 feet to a point of tangency on the
southerly side of Secaucus Road (60' wide); thence
9. S 68 degrees 17' 22" E 740.42 feet along the southerly side of
Secaucus Road (60' wide) to the point of beginning.
Containing 7.671 acres
Being known as Lot 3, Block 22 as shown on the Town of Secaucus Tax Maps.
Subject to a 80' wide easement for ingress and egress to be used in common with
others described as follows:
Beginning at the terminus of the eighth course of the above description and
running; thence
1. S 68 degrees 17' 22" E 160.00 feet along the southerly side of
Secaucus Road (60' wide) to a point of curvature; thence
2. Westerly along a curve to the left having a radius of 40.00
feet, an arc length of 62.83 feet to a point of tangency;
thence
3. S 21 degrees 42' 38" W 186.76 feet to a point of curvature;
thence
4. Along a curve to the left having a radius of 310.00 feet, an
arc length of 171.03 feet to a point on curve and the terminus
of the fourth course of the above description; thence
5. S 70 degrees 39' 06" W 80.87 feet along the fifth course to a
point on curve; thence
6. Along a curve to the Right having a radius of 390.00 feet, an
arc length of 228.44 feet along the sixth course of the above
description to a point of tangency; thence
7. N 21 degrees 42' 38" E 186.76 feet along the seventh course of
the above description to a point of curvature; thence
8. Along a curve to the left having a radius of 40.00 feet, an
arc length of 62.83 feet along the eighth course of the above
description to the point of beginning.
Subject to all easements, rights of ways and agreements of record.
Rev 12/96
<PAGE>
EXHIBIT C
LANDLORDS'S WORKLETTER
JENNA LANE, INC.
900 SECAUCUS ROAD
SECAUCUS, NJ
At no cost to tenant, landlord will perform the following work. Unless otherwise
noted, all finishes will be that of landlord's standard.
1. Deliver building in broom clean condition with all
mechanicals in good working order.
2. All existing offices (including warehouse office) to be
recarpeted and repainted.
3. Repair and/or replace ceiling tiles within office area.
4. Build approximately 2,000 square feet of retail space (to be
carved out of the existing offices). Included in this work
will be the demising of the unit, installation of 3 - 4
demising rooms, lights and ceiling tiles to match existing and
creating a new entrance door separate from the office
entrance. All fixtures will be tenant's responsibility.
5. Clean all bathrooms and repair any damaged fixtures.
6. Construct approximately 4,000 square feet of additional
offices which will include the following:
A. 12.5 tons of HVAC. Package rooftop unit. Dumped type
a/c system with concentric diffuser.
B. Install (25) 8' strip fluorescent lights.
C. VCT tile floor.
D. Full height sheetrock. Interior walls to be painted.
<PAGE>
E. One (1) pair of doors
F. Eleven (11) Wall mounted 110V, 30 AMP dedicated
isolated ground duplex units.
Twenty-Six (26) Wall mounted 11OV, 20 AMP standard
duplex outlets.
Five (5) Wall mounted 22OV, 20 AMP standard duplex
outlets
Three (3) S.P. switches operating (3) of the above
wall mounted 11OV, 20 AMP standard duplex outlets.
Five (5) Wall mounted 110V, 20 AMP standard dedicated
duplex outlets.
7. Patch leak in roof on the northwest side of the warehouse.
8. Replace Carrier rooftop air conditioning unit.
<PAGE>
EXHIBIT D
MULTI-WAREHOUSE
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors, elevators and
escalators servicing the Building are limited to ingress and egress from such
tenant's premises for the tenant and its employees, licensees and invitees, and
no tenant shall use, or permit the use of, the entrances, corridors, escalators
or elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by any other tenants. Fire exits and stairways are for emergency use only, and
they shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of, any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or stairways of the Building.
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it deems best for the benefit of
the tenants generally.
2. Landlord may refuse admission to the Building outside of Business
Hours on Business Days to any person not known to the watchman in charge, or not
having a pass issued by Landlord or the tenant whose premises are to be entered,
or not otherwise properly identified, and Landlord may require all persons
admitted to or leaving the Building outside of Business Hours on Business Days
to provide appropriate identification. Tenant shall be responsible for all
persons for whom it issues any such pass and shall be liable to Landlord for all
acts or omissions of such persons. Any person whose presence in the Building at
any time shall, in the judgment of Landlord, be prejudicial to the safety,
character or reputation of the Building or of its tenants may be denied access
to the Building or may be ejected therefrom. During any invasion, riot, public
excitement or other commotion, Landlord may prevent all access to the Building
by closing the doors or otherwise for the safety of the tenants and protection
of property in the Building.
3. No tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverage, towel, barbering, bootblacking, floor polishing,
cleaning or other similar services from any persons not authorized by Landlord
in writing to furnish such services, provided that the charges for such services
by persons authorized by Landlord are comparable to similar charges in other
comparable buildings in Hudson County. Such services shall be furnished only at
such hours, and under such reasonable regulations, as may be fixed by Landlord
from time to time.
<PAGE>
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or its employees, licensees or invitees, shall be
paid by such tenant.
5. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or be used in connection with, any window or door of the premises
of any tenant, without the prior written consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
6. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
premises, or at any point inside any tenant's premises where the same might be
visible outside of such premises, without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred in
such removal to the tenant violating this rule. Interior signs, elevator cab
designations and lettering on doors and the Building directory shall, if and
when approved by Landlord, be inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
7. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
8. No showcase or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
9. Linoleum, tile or other floor covering shall be laid in a tenant's
premises only in a manner first approved in writing by Landlord.
10. No tenant shall mark, paint, drill into, or in any way deface any
part of its premises or the Building. No boring, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord, and as
Landlord may direct.
11. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant of the Building.
<PAGE>
12. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
13. No tenant, nor any tenant's contractors, employees, agents,
visitors or licensees, shall at any time bring into or keep upon the premises or
the Building any inflammable, combustible, explosive or otherwise dangerous
fluid, chemical or substance.
14. Additional locks or bolts of any kind which shall not be operable
by the grand master key for the Building shall not be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said grand master
key. Additional keys for a tenant's premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord such
tenant shall pay to Landlord the cost thereof.
15. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a master rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, shall be paid by Tenant to Landlord, on demand.
<PAGE>
16. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or this Lease. Landlord
may require any person leaving the Building with any package or other object or
matter to submit a pass, listing such package or object or matter, from the
tenant from whose premises the package or object or matter is being removed, but
the establishment and enlargement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Landlord shall in no way be liable
to any tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from the premises or the Building under the
provisions of this RULE or of RULE 2 hereof.
17. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, tobacco in any
form, or as a barber, beauty or manicure shop, or as a school. No tenant shall
use its premises or any part thereof to be used for manufacturing, or the sale
at retail or auction of merchandise, goods or property of any kind.
18. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's judgment, tends to impair
the reputation of the Building or its desirability as a building for others, and
upon written notice from Landlord, such tenant shall refrain from and
discontinue such advertising or identifying sign.
19. Landlord shall have the right to prescribe the weight and position
of safes and other objects of excessive weight, and no safe or other object
whose weight exceeds the lawful load for the area upon which it would stand
shall be brought into or kept upon any tenant's premises. If, in the judgment of
Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the expense of
the tenant and in such a manner as Landlord shall determine.
20. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's premises without
Landlord's prior written consent, and in no case (even where the same are of a
type so excepted or as so consented to by Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other tenants; but
machines and mechanical equipment which may be permitted to be installed and
used in a tenant's premises shall be so equipped, installed and maintained by
such tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
<PAGE>
21. Landlord, its contractors, and their respective employees, shall
have the right to use, without charge therefor all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
22. No premises of any tenant shall be used for lodging or sleeping or
for any immoral or illegal purpose.
23. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
24. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
25. No tenant shall cause or permit any unusual or objectionable odors
to emanate from its premises which would annoy other tenants or create a public
or private nuisance. No cooking shall be done in the premises of any tenant
except as is expressly permitted in such tenant's Lease.
26. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the premises,
or the use or enjoyment by any other tenant of any other premises nor shall
there be installed by any tenant any ventilating, air-conditioning, electrical
or other equipment of any kind which, in the judgment of Landlord, might cause
any such impairment or interference.
<PAGE>
27. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenants
who, or whose servants, employees, agents, visitors or licensees shall have,
caused the same. Any cuspidors or containers or receptacles used as such in the
premises of any tenant or for garbage or similar refuse, shall be emptied, cared
for and cleaned by and at the expense of such tenant.
28. All entrance doors in each tenant's premises shall be left locked
and all windows shall be left closed by the tenant when the tenant's premises
are not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
29. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
30. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises.
31. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary, desirable or proper for its best interest and for the best
interests of the tenants, and no alteration or waiver of any rule or regulation
in favor of one tenant shall operate as an alteration or waiver in favor of any
other tenant. Landlord shall not be responsible to any tenant for the
non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed for the Building.
:\LEGAL\DOCS\PATTON\JENNA\DRAFTS\RULES.WAR
<PAGE>
EXHIBIT E
[NAME AND ADDRESS OF ISSUING BANK]
[INSERT DATE]
IRREVOCABLE LETTER OF CREDIT NO. (INSERT NUMBER)
Hartz Mountain Associates
c/o Hartz Mountain Industries, Inc.
400 Plaza Drive
Secaucus, New Jersey 07094
Gentlemen:
At the request and for the account of
located at
(hereinafter called "Applicant"), we hereby establish our Irrevocable
Letter of Credit No. [INSERT NUMBER] in your favor and authorize you and your
assigns to draw on us up to the aggregate amount of US$ 500,000.00 (as such
amount may be reduced from time to time in accordance with the schedule annexed
hereto, but in no event less than $ ) available by your draft(s) at sight drawn
on us and accompanied by the following:
A statement signed as follows: "The drawer hereunder is entitled to draw upon
this letter of credit pursuant to that certain lease agreement, ,
as Tenant (the "Lease")."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Applicant disputes the content of such
statement. Partial drawings against this Letter of Credit are permitted.
This Irrevocable Letter of Credit shall automatically renew itself for
successive twelve (12) month periods from the date above, unless we notify you,
by certified mail, return receipt requested, of our intention not to renew at
least sixty (60) days prior to any annual renewal date. This credit will expire
at our counters
This irrevocable Letter of Credit is transferable at no charge to any
transferee of Landlord upon notice to the undersigned from you and such
transferee.
<PAGE>
Multiple draws on this Letter of Credit are permitted.
This credit is subject to the Uniform Customs and Practices for Documentary
Credits ( 993 Revisions International Chamber of Commerce, Publication #500).
Upon receipt of the documents above described, we shall pay you as requested.
Very truly yours,
Name of Bank Countersigned:
Vice President Vice President
EXHIBIT 21.1
SUBSIDIARIES
T.L.C. for Kidz, Inc.
Jenna Lane Licensing I, Inc.
Jenna Lane Polo Association, Ltd.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements of Jenna Lane, Inc. and subsidiaries included in the
Company's Form 10-K for the year ended March 31, 1999, and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-mos
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> APR-01-1998
<PERIOD-END> MAR-31-1999
<CASH> 41465
<SECURITIES> 0
<RECEIVABLES> 1318942
<ALLOWANCES> 1036000
<INVENTORY> 10464842
<CURRENT-ASSETS> 11969666
<PP&E> 1724373
<DEPRECIATION> 414036
<TOTAL-ASSETS> 14064775
<CURRENT-LIABILITIES> 4634051
<BONDS> 0
0
0
<COMMON> 44147
<OTHER-SE> 8620114
<TOTAL-LIABILITY-AND-EQUITY> 14064775
<SALES> 60392370
<TOTAL-REVENUES> 60392370
<CGS> 47491745
<TOTAL-COSTS> 58422057
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 666676
<INCOME-PRETAX> 1303637
<INCOME-TAX> 562068
<INCOME-CONTINUING> 741569
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 741569
<EPS-BASIC> 0.17
<EPS-DILUTED> 0.16
</TABLE>
