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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(MARK ONE)
[X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 27, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934 (No fee required)
Commission file number 0-10345
CACHE, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 59-1588181
------------------------------- ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1440 Broadway, New York, New York 10018
---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 575-3200
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
---------------------------
(Title of Class)
----------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
As of June 27, 2003, the aggregate market value of the voting stock held
by non-affiliates of the registrant (based on the closing price in the NASDAQ
National Market) was approximately $55.8 million.
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 12b-2) Yes [ ] No [X]
As of February 29, 2004, 10,416,150 common shares were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Certain information included in the Registrant's Proxy Statement to be
filed in connection with its 2004 Annual Meeting of Stockholders has been
incorporated by reference into Part III (Items 10, 11, 12, 13, 14 and 15) of
this report on Form 10-K.
CACHE, INC.
FORM 10-K ANNUAL REPORT
DECEMBER 27, 2003
TABLE OF CONTENTS
ITEM NO. PAGE
- -------- ----
PART I
1. Business 1
2. Properties 11
3. Legal Proceedings 11
4. Submission of Matters to a Vote of Security Holders 12
PART II
5. Market for the Registrant's Common Stock and Related
Stockholder Matters 13
6. Selected Financial Data 14
7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 16
7A. Quantitative and Qualitative Disclosures About Market Risk 22
8. Financial Statements and Supplementary Data 24
9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure 24
9A Controls and Procedures 25
PART III
10. Directors and Executive Officers of the Registrant 25
11. Executive Compensation 25
12. Security Ownership of Certain Beneficial Owners and Management 25
13. Certain Relationships and Related Transactions 25
14 Principal Accountant Fees and Services 25
15. Exhibits, Financial Statement Schedules and Reports on Form 8-K 26
PART I
ITEM 1. BUSINESS
STATEMENT REGARDING FORWARD LOOKING STATEMENTS
Except for the historical information and current statements contained in
this Annual Report, certain matters discussed herein, including, without
limitation, "Management's Discussion and Analysis of Financial Condition and
Results of Operations" are forward looking statements that involve risks and
uncertainties, including, without limitation, the effect of economic and market
conditions and competition, the ability to open new stores and expand into new
markets, and risks relating to foreign importing operations, which would cause
actual results to differ materially.
GENERAL
We are a specialty retailer of social occasion sportswear and dresses
targeting style-conscious women. We own and operate two separate store concepts,
Cache and Lillie Rubin, each of which carries its own distinctive branded
merchandise. Cache targets women between the ages of 25 and 45 while Lillie
Rubin stores offer a more sophisticated line of social occasion apparel
targeting women between the ages of 35 and 55.
Both store concepts focus on social occasion dressing designed for
contemporary women. Our Cache and Lillie Rubin lines extend from elegant
eveningwear to our distinctive day-into-evening sportswear, which encompasses
a variety of tops, bottoms and dresses versatile enough to be worn during the
day or evening. We operate 227 Cache and 28 Lillie Rubin stores (as of December
27, 2003) primarily situated in central locations in high traffic, upscale malls
throughout the United States.
Merchandising
Our merchandising focuses on providing a selection of sportswear and
dresses extending from elegant eveningwear to day-into-evening sportswear. As
a result of our short lead time of four weeks to 12 weeks, we are able to
employ a constant process of test-and-ordering that allows us to restock popular
items during the same season. We also maintain a key item strategy, providing
some popular and core items for longer periods to meet ongoing customer demand.
New merchandise typically arrives on a weekly basis at each of our stores,
giving our customers a reason to visit our stores frequently. We introduce new
floor sets into each of our stores approximately every six weeks. These new
floor sets allow exciting changes in visual merchandising within both our stores
and our window presentations.
1
Merchandise
We design and market three general categories of merchandise:
Sportswear. Sportswear consists of related tops and bottoms, versatile
enough to be worn during the day or out for evening affairs.
Dresses. Dresses range from special occasion long dresses to shorter
lengths for cocktail and day-into-evening wear.
Accessories. Accessories consist primarily of jewelry, belts and
handbags intended to complement our sportswear and dress selections.
These categories of merchandise differ in style depending on whether
they are offered in our Cache or Lillie Rubin stores.
Cache. Cache's average price points for sportswear range from $60 to $300,
dresses range from $125 to $450 and accessories range from $30 to $150. The
following table indicates the percentage of Cache's net sales by merchandise
category for each of the last three fiscal years:
52 Weeks Ended
--------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
Sportswear 67.0% 64.3% 67.3%
Dresses 24.7 27.5 24.3
Accessories 8.3 8.2 8.4
------------ ------------ ------------
Total 100.0% 100.0% 100.0%
============ ============ ============
Lillie Rubin. Price points at Lillie Rubin are approximately 25% to 30%
higher than at Cache. The following table indicates the percentage of Lillie
Rubin's net sales by merchandise category for each of the last three fiscal
years:
52 Weeks Ended
--------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
Sportswear 39.9% 44.9% 49.7%
Dresses 51.6 47.1 44.9
Accessories 8.5 8.0 5.4
------------ ------------ ------------
Total 100.0% 100.0% 100.0%
============ ============ ============
2
The percentage of sales represented by dresses is typically higher in the
first half of the year for both Cache and Lillie Rubin due to buying for the
Easter, wedding and prom seasons. The percentage of Lillie Rubin sales
represented by sportswear is expected to increase again in fiscal 2004 as a
result of the introduction in fall 2003 of an updated day-into-evening
sportswear collection in all of our Lillie Rubin stores.
Design
Our apparel design and merchandising are organized around the spring and
fall seasons. Our internal design and merchandising team is comprised of a
designer, buyers who specialize in particular fashion classifications and
executive management personnel. Following the end of a season, our design team
reviews data from that season's results as well as market research, retail
trends, trade shows and other resources. Based on this information, our team
develops seasonal themes which will influence our exclusive designs for the
following year.
Approximately nine to 12 weeks prior to a season, we begin to coordinate
with external designers at our vendors to select specific styles that reflect
our themes for the upcoming season. We have established close relationships
with many of our vendors, enabling us to frequently create and test new
merchandise in our stores prior to the upcoming season and stay abreast of
changing fashion trends and market demands. On an ongoing basis, we revise our
styles or buying levels accordingly.
We believe that our ability to offer an attractive but comfortable missy
fit is crucial for our customers. Once we have identified specific designs and
materials, our technical department works closely with our in-house fit model
and our manufacturers through a collaborative process that tests specific
measurements to ensure that the merchandise meets our high standards for fit
and comfort.
Our accessories are designed and manufactured for us by third-party
vendors.
In addition, in January 2004, we hired a new designer for the Lillie Rubin
brand. This new resource, we believe, will enhance the Lillie Rubin merchandise
assortment and complement the Cache designer already in place.
Planning
We conduct our planning process based on our historical point-of-sale data,
economic trends, seasonality and anticipated demand based on market tests. We
determine at a corporate level the total number of stock keeping units and the
composition by product, print, color, style and size. Our vendors are then able
to negotiate bulk material purchase with their suppliers, which we believe
enables us to obtain better pricing.
Our merchandising and planning teams determine the appropriate level and
type of merchandise per store and communicate that information to our vendors
who drop ship the merchandise to each store. Following receipt at our stores
the merchandising staff obtains daily sales information and store-level
inventory generated by our point-of-sale computer system. Based upon this data
management teams make decisions with respect to re-orders, store transfers and
markdowns.
3
In addition to introducing new merchandise, we employ a key item strategy
whereby we maintain an inventory of core items in every store. This provides
customers with a level of certainty that these items will be in stock when they
visit, rather than rotating out of the store with merchandise changes. In
certain situations, a store that is experiencing particularly strong sell-
throughs relays the information to our management team and buyers, who in turn
may add or adjust new merchandise in response to this feedback.
Sourcing and Distribution
We employ a sourcing and distribution strategy that enhances our speed to
market, allows us to respond quickly to fashion preferences and demand, and
reduces inventory risk. We purchase the vast majority of our merchandise from
domestic vendors. Sourcing from domestic vendors provides us with short lead
times ranging from four to 12 weeks from order to shipment, compared with
typically much longer periods for sourcing from foreign vendors. Our five
largest vendors accounted for approximately 45% of our purchases in fiscal 2003,
and our largest vendor accounted for 23% of our purchases during this period.
Nearly all of our merchandise is drop shipped directly by our vendors to
our individual stores rather than sent to a warehouse or distribution center.
Drop shipping significantly decreases our distribution expenses and reduces the
time required to deliver merchandise to our stores. If a customer requests an
item out of stock at a specific store, we can ship the merchandise from another
store to the customer by overnight or common carrier, the cost of which
typically is borne by the customer.
Store Operations
Store Design and Environment
Most of our stores range in size from approximately 1,500 to 2,500 square
feet, with our typical store averaging approximately 2,000 square feet. We
believe that our relatively smaller store size enables us to create a boutique-
like atmosphere by providing a more intimate shopping environment and a higher
level of customer service than department stores. Most of our stores are open
during the same hours as the malls in which they are located, typically seven
days and six nights a week.
We have recently changed both our Cache and Lillie Rubin store designs and
layouts to enhance their appeal to the customer, increase access to merchandise,
facilitate movement throughout the store and improve our displays. Our new store
design emphasizes a modern, sophisticated and well-lit atmosphere with
streamlined exteriors and sleek interiors. In addition, at Cache we have moved
the dressing rooms from the middle of the store to the rear, and check-out
locations from the front of the store to the side. This eliminates barriers to
movement throughout the store and permits greater flexibility in merchandise
displays, allowing us to more effectively market our clothing.
We began to remodel existing stores using this new design during late
fiscal 2001. We remodeled 15 Cache and two Lillie Rubin stores in fiscal 2003
and expect to remodel approximately 25 stores in fiscal 2004 and 30 stores in
fiscal 2005, as leases come up for renewal. Most store remodels take from four
4
to six weeks. During this period, we typically utilize temporary locations in
the mall near the existing location so that customers can continue to shop for
our merchandise.
Store Management and Training
We organize our stores into regions and districts, which are overseen by
three regional vice presidents and 25 district managers, with each of our
district managers typically responsible for eight to 12 stores. We typically
staff our stores with two opening employees, three mid-day employees and two
closing employees.
We seek to provide our customers with superior customer service. To promote
this part of our strategy, store managers and co-managers receive both salaries
and performance-based bonuses. We pay sales associates and assistant managers on
an hourly basis as well as performance incentives. From time to time, we offer
additional incentives, such as sales contests, to both management and sales
associates. Additionally, we place special emphasis on the recruitment of
fashion-conscious and career-oriented sales personnel. We train most new store
managers in designated training stores and train most other new store sales
personnel on the job.
Existing Store Locations
As of December 27, 2003 we operated 255 stores located in 42 states and
Puerto Rico. Of these 227 were Cache stores and 28 were Lillie Rubin stores.
The following tables indicate our stores by location:
Cache stores:
Alabama 5 Louisiana 4 Ohio 9
Arizona 4 Maryland 5 Oklahoma 2
Arkansas 1 Massachusetts 8 Oregon 2
California 23 Michigan 6 Pennsylvania 7
Colorado 2 Minnesota 1 Rhode Island 2
Connecticut 4 Mississippi 1 South Carolina 3
Delaware 1 Missouri 2 Tennessee 5
Florida 31 Nebraska 1 Texas 18
Georgia 8 Nevada 6 Utah 1
Hawaii 2 New Hampshire 3 Vermont 1
Illinois 8 New Jersey 11 Virginia 7
Indiana 2 New Mexico 1 Washington 3
Kansas 2 New York 11 West Virginia 1
Kentucky 3 North Carolina 8 Wisconsin 1
Puerto Rico 1
Lillie Rubin stores:
Alabama 1 Louisiana 1 Ohio 1
Arizona 1 Michigan 1 Pennsylvania 2
Colorado 1 Nevada 1 Tennessee 1
Florida 8 New Jersey 1 Texas 4
Georgia 2 North Carolina 1 Virginia 1
Washington 1
5
The following table indicates the number of stores opened and closed over
the past five fiscal years:
Stores Opened Stores Closed Stores Open at
Stores Open During Fiscal During Fiscal End of Fiscal
Beginning Year Year Year Total
Fiscal of --------------------------------------------------- Square
Year Fiscal Year Cache L.R.(1) Cache L.R. Cache L.R. Total Footage
- ------ ----------- ----- ------- ----- ---- ----- ---- ----- --------
1999 184 13 6 2 0 183 18 201 424,000
2000 201 8 8 1 1 190 25 215 448,000
2001 215 9 1 2 1 197 25 222 460,000
2002 222 10 3 0 1 207 27 234 478,000
2003 234 22 2 2 1 227 28 255 514,000
(1) In 1998, we acquired the Lillie Rubin chain which consisted of 12 stores at
that time.
New Store Development
We continually review potential new locations for Cache and Lillie Rubin
stores. We locate our new stores primarily in upscale shopping malls. When
selecting a new site, we target high traffic locations with suitable
demographics and favorable lease economics. When evaluating a new site, we also
look at the principal and anchor stores in the mall, location of our store
within the mall and other specialty stores located in the mall.
During fiscal 2003, we opened 22 Cache stores and two Lillie Rubin stores
and closed two Cache stores and one Lillie Rubin store. In fiscal 2004, we
intend to open approximately 45 stores consisting of 35 Cache and ten Lillie
Rubin stores. In fiscal 2005, we intend to open approximately 55 stores,
consisting of 40 Cache and 15 Lillie Rubin stores. Currently 26 of our Lillie
Rubin stores are located in malls that also contain Cache stores, and we intend
to locate the substantial majority of our new Lillie Rubin stores in malls
containing Cache stores.
Marketing and Promotion
Historically, we conducted limited marketing and advertising, relying on
our individual store displays, mall locations and word-of-mouth to attract
customers. In early fiscal 2002 and all during fiscal 2003, we used a variety of
media to promote our Cache brand and increase sales, consisting primarily of
advertisements in magazines such as Harper's Bazaar, Lucky and Vogue. We also
introduced outdoor advertising in selected markets on billboards and buses,
including a large campaign in Grand Central Station in New York. We expect to
continue to increase our Cache advertising and marketing expenditures. In fiscal
2003, we launched a first-time advertising and marketing campaign for the Lillie
Rubin brand. These increased marketing efforts for both Cache and Lillie Rubin
are intended to attract new customers and increase sales to existing customers.
We use direct mail campaigns to both potential and existing Cache
customers. Over the past several years, we have built a database of over 2.5
million preferred Cache customers from our point-of-sale information system and
mail 10 to 12 promotions per year to our targeted customers. We have already
rapidly expanded the Lillie Rubin Preferred Customer database over the past
year. Our preferred customer tracking system enables us to identify and target
specific merchandise promotions targeted at individual customers. We also send
6
e-mail notices to customers and intend to increase our use of e-mail promotions
in the future.
Our Cache and Lillie Rubin brands are supported by visual merchandising,
which consists of window displays, front table layouts and various promotions.
This type of marketing is an important component of our marketing and promotion
strategies since our mall locations provide significant foot traffic. We make
decisions regarding store displays and advertising at the corporate level,
ensuring a consistent appearance and message throughout all our stores. In
addition, we encourage store management to become involved in community affairs,
such as participating in local charity fashion shows, to enhance brand
recognition and meet potential customers. Some stores host trunk shows several
times each year to present selected merchandise to customers.
We have operated a Cache website, www.cache.com, since August 1999. We
continue to enhance features on this website, which allows customers to purchase
merchandise online, view currently available styles and schedule private
fittings of merchandise at any Cache store. We have seen a strong increase in
sales at the website over the past two years, as website sales have increased
from $537,000 in fiscal 2002 to $1.3 million in fiscal 2003.
Competition
The market for women's social occasion sportswear, dresses and accessories
is highly competitive. We compete primarily with specialty retailers of women's
apparel and department stores. Our stores typically compete directly with other
women's apparel stores located in the same mall or a nearby location. We believe
our target customers choose to purchase apparel based on the following factors:
* style and fashion,
* fit and comfort,
* customer service,
* shopping convenience and environment and
* value.
We believe that our Cache and Lillie Rubin stores and merchandise have
advantages over our competitors in meeting these needs.
Information Systems
We utilize a combination of off-the-shelf and custom software applications
in our point-of-sale computer system to track our sales and inventory levels on
a daily basis. Each store communicates this data directly to the host system
at our corporate headquarters in New York. Our systems enable us to quickly
identify issues and make decisions such as redirecting merchandise shipments,
adjusting prices, re-ordering based on results of test marketing and monitoring
the success of promotional campaigns. In addition, our systems facilitate
various administrative functions such as payroll, inventory control, merchandise
transfers, special orders and price checking.
7
Trademarks and Service Marks
We are the owner in the United States of the Cache and Lillie Rubin
trademarks and service marks. These marks are registered with the United States
Patent and Trademark Office. Each federal registration is renewable indefinitely
if the mark is still in use at the time of renewal. Our rights to the "Cache"
mark and "Lillie Rubin" mark are a significant part of our business.
Accordingly, we intend to maintain these marks and the related registrations.
We are unaware of any material claims of infringement or other challenges to
our right to use our marks in the United States, although we have successfully
brought infringement claims against third parties in the past.
Employees
As of December 27, 2003, we had approximately 2,100 employees, of whom
approximately 1,050 were full-time employees and 1,050 were part time employees.
None of these employees is represented by a labor union. We consider our
employee relations to be satisfactory.
Executive Officers, Directors and Key Employees
The following table sets forth information concerning our executive
officers, directors and key employees:
Name Age Position
- -------------------------------- --- ----------------------------------
Executive Officers and Directors
Brian Woolf 55 Chief Executive Officer and
Chairman of the Board
Thomas E. Reinckens 50 President, Chief Operating
Officer and Director
Arthur S. Mintz 58 Director
Andrew M. Saul 57 Director
Joseph E. Saul 84 Director
Morton J. Schrader 72 Director
Catherine McNeal 44 Executive Vice President, General
Merchandise Manager, Cache
David Desjardins 42 Executive Vice President, Director
of Stores and Operations
Other Key Employees
Maria Comfort 47 Vice President, General Merchandise
Manager, Lillie Rubin
Victor Coster 46 Treasurer and Secretary
Lisa Decker 42 Vice President, Marketing
Margaret Feeney 46 Vice President, Finance
Clifford Gray 48 Vice President, Construction
Joanne Marselle 43 Vice President, Planning and
Distribution
Caryl Paez 43 Director, Information Technologies
8
Executive Officers and Directors
Brian Woolf has served as Chief Executive Officer and Chairman of the
Board since October 2000. From March 1999 to October 2000, Mr. Woolf served as
Vice President and General Merchandise Manager for The Limited. From 1995 to
March 1999, Mr. Woolf served as Senior Vice President and General Merchandise
Manager for Caldor. Mr. Woolf has held various management positions within the
retail industry over the last 30 years.
Thomas E. Reinckens has served as President and Chief Operating Officer
since October 2000 and as a director since February 1993. Mr. Reinckens also is
our current principal financial and accounting officer. Mr. Reinckens joined
our company in February 1987 and has held various positions throughout his
tenure, most recently serving as Chief Financial Officer from November 1989 to
October 2000 and Executive Vice President from September 1995 to October 2000.
Mr. Reinckens has over 20 years of retail experience.
Arthur S. Mintz has served as one of our directors since September 2002.
Mr. Mintz has served as the President of Bees & Jam, Inc., an apparel
manufacturer, since 1971.
Andrew M. Saul has served as one of our directors since 1986. Mr. Saul also
served as our Chairman of the Board from February 1993 to October 2000. Mr. Saul
is a partner in Saul Partners, an investment partnership, a position he has held
since 1986. He is the son of Joseph E. Saul.
Joseph E. Saul has served as one of our directors since 1986. Mr. Saul is
a partner in Saul Partners, a position he has held since 1986. He is the father
of Andrew M. Saul.
Morton J. Schrader has served as one of our directors since 1989. Mr.
Schrader was the President of Abe Schrader Corp., a manufacturer of women's
apparel, from 1968 through March 1989. Since 1989, he has been active as a real
estate broker.
Catherine McNeal has served as Executive Vice President, Merchandise
Manager for our Cache stores since June 2003. From 1997 until joining Cache, Ms.
McNeal served in various managerial capacities for the Limited, most recently
as Vice President, Merchandising Manager for Limited stores. Ms. McNeal has
over 20 years of retail experience.
David Desjardins has served as Executive Vice President and Director of
Stores and Operations since April 2002. From 1999 until joining us, Mr.
Desjardins served in various managerial capacities at the Limited, most recently
as Vice President of Express and Director of Sales and Operations at Limited
Stores. From 1990 to 1999, Mr. Desjardins held various managerial positions with
The Gap. Mr. Desjardins has over 15 years of retail experience.
9
Other Key Employees
Maria Comfort has served as Vice President and General Merchandise Manager
for our Lillie Rubin stores since May 2002. From 1999 until she joined us, Ms.
Comfort served as Executive Vice President for Giorgio Armani. From June 1997
to 1999, Ms. Comfort served as President of 9 & Co., a division of Nine West
Group, Inc., a women's apparel company. Ms. Comfort's background encompasses a
variety of merchandising functions, including design, manufacturing and buying.
Ms. Comfort has over 25 years of retail experience.
Victor Coster has served as Secretary since July 1991 and as our Treasurer
since July 2001. Mr. Coster is responsible for all treasury and tax matters. Mr.
Coster joined us in February 1991, and has held various positions, most recently
as Controller from February 1997 to July 2001. Mr. Coster has over 25 years of
experience in finance and accounting and has been a Certified Public Accountant
since 1981.
Lisa Decker has served as Vice President of Marketing and Advertising
since 1998 and was our Director of Marketing from 1991 until 1998. She has over
20 years of experience in marketing, advertising, sales promotion and visual
merchandising within the retail industry.
Margaret Feeney has served as Vice President of Finance since 2001. Ms.
Feeney has served in a variety of financial and operational capacities with us
since 1992. Prior to joining us, Ms. Feeney served as Manager of Financial
Analysis and Budgeting for Toys "R" Us and in various financial positions at
Brooks Fashion Stores, a junior specialty chain. Ms. Feeney has 19 years of
retail experience.
Clifford Gray has served as Vice President of Construction since 1999 and
was our Operations Manager from 1991 to 1999. Prior to joining us, Mr. Gray
served as Operations Manager with Kids "R" Us.
Joanne Marselle has served as Vice President of Planning and Distribution
since 2000 and was our Director of Planning from 1990 to 2000. Prior to joining
us, Ms. Marselle served at various times as a Planning and Distribution Analyst
and a Merchandise Coordinator for both Country Road Australia and Ann Taylor.
Ms. Marselle has over 20 years experience in the areas of planning and
distribution.
Caryl Paez has served as Director of Information Technologies since he
rejoined our company in 1999. From 1996 to 1999, he was Director of Information
Technologies for Louis Vuitton Americas. From 1992 to 1996, he served as our
Director of Management Systems and from 1989 to 1992, as our Manager of Point
of Sales Systems.
10
ITEM 2. PROPERTIES
All but a few of our 255 stores are located in shopping malls. The
substantial majority of our stores contain between 1,500 and 2,500 square feet
of space, with the typical store averaging 2,000 square feet. All of our stores
are in leased facilities, and we typically negotiate our rental agreements based
on our portfolio of store locations with a particular landlord rather than on
an individual basis. Rental terms usually include a fixed minimum rent plus a
percentage rent based on sales in excess of a specified amount. In addition,
we generally are required to pay a charge for common area maintenance, utility
consumption, promotional activities and/or advertising, insurance and real
estate taxes. Several leases contain fixed escalation clauses.
Our leases expire at various dates through 2015. The following table
indicates the periods during which our leases expire.
Fiscal Years Cache Lillie Rubin Totals
------------ ----- ------------ ------
Present-2006 80 5 85
2007-2009 38 2 40
2010-2012 52 12 64
2013-2016 57 9 66
----- ------------ ------
Totals 227 28 255
Our corporate office is a 20,000 square foot facility located at 1440
Broadway in New York City. We lease this space under a 10-year lease through
2013 at a rate of approximately $543,000 per year.
We contract for space in a warehouse in New Jersey on an as-needed basis
to serve as a staging area for new store inventories and fixtures.
ITEM 3. LEGAL PROCEEDINGS
We are party to various lawsuits arising in the ordinary course of our
business. Management does not believe it is reasonably possible that resolution
of these matters will result in a material loss.
11
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Cache, Inc. held its annual meeting of shareholders at its headquarters
in New York, New York on November 11, 2003. Of the 9,949,650 shares outstanding
as of the record date, 9,617,348 shares were represented by proxy at the
meeting. Proxies were solicited by Cache pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended. At the meeting, Cache's
shareholders voted on the following matters:
(1) Proposal to elect six directors to hold office for a one-year term
and until their successors are elected and qualified.
For Withheld
--------- ---------
Andrew M. Saul 9,350,911 266,437
Joseph E. Saul 9,350,911 266,437
Brian Woolf 7,507,354 2,109,994
Thomas E. Reinckens 7,507,354 2,109,994
Arthur S. Mintz 9,350,811 266,537
Morton J. Schrader 9,350,911 266,437
(2) Proposal to approve the 2003 Stock Option and Performance Incentive
Plan.
For Against Abstain Broker non
Votes
--------- ------- ------- ----------
7,537,935 429,867 3,002 1,646,544
(3) Proposal to ratify the appointment of KPMG LLP as our independent
auditors for the fiscal year ending December 28, 2003.
For Against Abstain
--------- ------- -------
9,577,067 38,705 1,576
12
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS
a. The principal market in which the Company's Common Stock is being traded is
the NASDAQ National Market System. The stock symbol is CACH. The price
range of the high and low bid information for the Company's Common Stock
during 2002 and 2003, by fiscal quarters, are as follows:
Fiscal Period Fiscal 2002 Fiscal 2003
-------------------- --------------- ---------------
High Low High Low
------ ------ ------ ------
First Fiscal Quarter $ 7.94 $ 3.40 $14.57 $10.05
Second Fiscal Quarter $18.45 $ 6.26 $15.31 $ 7.62
Third Fiscal Quarter $18.15 $ 9.25 $22.40 $14.71
Fourth Fiscal Quarter $15.05 $10.29 $27.33 $19.11
Such over-the-counter market quotations reflect inter-dealer prices, without
retail mark-up, markdown or commission and may not necessarily represent actual
transactions.
b. As of February 29, 2004, there were approximately 325 holders of record of
the Company's Common Stock.
c. The Company has never paid cash dividends on its common stock. Payment of
dividends is within the discretion of the Company's Board of Directors.
d. The following table summarizes our equity compensation plans as of December
27, 2003:
Number of
ecurities remaining
available for
Number of Weighted the future issuance
securities to be average under equity
issued upon exercise compensation plans
exercise of price of (excluding securities
outstanding outstanding reflected in
Plan Category options options column (a))
------------------------------ ---------------- ----------- ---------------------
(a) (b) (c)
Equity compensation plans
approved by security holders 1,348,000 $12.87 112,188
Equity compensation plans not
approved by security holders 0 0 0
---------------- ----------- ---------------------
Total 1,348,000 $12.87 112,188
================ =========== =====================
13
ITEM 6. SELECTED FINANCIAL DATA
The following Selected Consolidated Financial Data should be read in conjunction
with the Company's Consolidated Financial Statements and Notes thereto.
CACHE, INC. AND SUBSIDIARIES
STORE DATA AND OPERATING RESULTS
52 WEEKS ENDED (1)
------------------------------------------------------------------------
JAN. 1, DEC. 30, DEC. 29, DEC. 28, DEC. 27,
2000 2000 2001 2002 2003
-------- -------- -------- -------- --------
(in thousands, except per share and operating data)
OPERATING RESULTS:
NET SALES $162,077 $177,313 $180,750 $200,315 $216,256
COST OF SALES 106,535 119,091 117,201 116,490 120,731
-------- -------- -------- -------- --------
GROSS INCOME 55,542 58,222 63,549 83,825 95,525
STORE OPERATING EXPENSES 41,680 47,028 51,285 57,322 63,546
GENERAL AND
ADMINISTRATIVE EXPENSES 7,655 9,481 8,929 12,190 14,074
-------- -------- -------- -------- --------
OPERATING INCOME 6,207 1,713 3,335 14,313 17,905
OTHER INCOME, (net) 286 64 1,858(2) 260 273
INTEREST EXPENSE (134) (40) __ __ __
-------- -------- -------- -------- --------
INCOME BEFORE INCOME
TAXES 6,359 1,737 5,193 14,573 18,178
INCOME TAX PROVISION 2,350 634 1,895 5,632 7,089
-------- -------- -------- -------- --------
NET INCOME $4,009 $1,103 $3,298 $8,941 $11,089
======== ======== ======== ======== ========
EARNINGS PER SHARE:
BASIC EARNINGS PER SHARE $0.44 $0.12 $0.36 $0.98 $1.17
DILUTED EARNINGS
PER SHARE $0.43 $0.12 $0.36 $0.93 $1.13
WEIGHTED AVERAGE
SHARES OUTSTANDING:
BASIC 9,091 9,091 9,091 9,100 9,504
DILUTED (3) 9,305 9,224 9,229 9,632 9,814
STORE DATA:
NUMBER OF STORES OPEN
AT END OF PERIOD 201 215 222 234 255
AVERAGE SALES PER
SQUARE FOOT (4) $400 $409 $408 $438 $450
COMPARABLE STORE
SALES INCREASE (5) 5% 3% 0% 7% 3%
14
CACHE, INC. AND SUBSIDIARIES
BALANCE SHEET DATA
-----------------------------------------------------------------------
JAN. 1, DEC. 30, DEC. 29, DEC. 28, DEC. 27,
2000 2000 2001 2002 2003
------- -------- -------- -------- --------
(in thousands, except ratios and per share data)
WORKING CAPITAL $14,877 $16,165 $20,197 $26,654 $41,034
TOTAL ASSETS 56,962 55,051 57,135 71,297 96,029
TOTAL LONG-TERM
DEBT --- --- --- --- ---
STOCKHOLDERS' EQUITY 31,905 33,008 36,306 45,292 65,142
RATIO OF CURRENT ASSETS
TO CURRENT LIABILITIES 1.63:1 1.78:1 2.03:1 2.07:1 2.41:1
INVENTORY TURNOVER
RATIO 4.86:1 4.84:1 5.07:1 5.28:1 4.94:1
CAPITAL EXPENDITURES 6,354 4,852 4,330 7,342 11,947
DEPRECIATION AND
AMORTIZATION 4,602 4,891 4,870 4,963 5,570
BOOK VALUE PER SHARE $3.51 $3.63 $3.99 $4.98 $6.53
FOOTNOTES
(1) Results for all periods presented include 52 weeks.
(2) Other income in fiscal 2001 included $1,518,000 from the settlement of a trademark litigation claim
undertaken against a third party, net of professional fees related to the lawsuit. Other income generally
consists of interest income.
(3) Diluted weighted average shares for the fiscal years ended, January 1, 2000, December 30, 2000, December 29, 2001,
December 28, 2002, and December 27, 2003 include 214,000, 133,000, 138,000, 532,000 and 310,000, shares
respectively, due to the potential exercise of stock options that were outstanding and exercisable during those years.
(4) Average sales per square foot are calculated by dividing net sales by the weighted average store square footage available.
(5) Comparable store sales data is calculated based on the net sales of stores open at least 12 full months at the
beginning of the period for which the data are presented.
15
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
General
Net sales. Net sales consist of sales from comparable stores and
non-comparable stores. A store is not included in comparable store sales until
the first day of the fiscal month following the twelfth full month of sales.
Non-comparable store sales include sales generated at new stores prior to the
period when they are considered comparable stores and sales generated from
stores that we have since closed.
Shipping and handling. Amounts billed to customers for shipping and
handling fees are included in net sales at the time of shipment. Costs incurred
for shipping and handling are included in cost of sales.
Cost of sales. Cost of sales includes the cost of merchandise, cost of
freight from vendors, payroll for our design, buying and merchandising personnel
and store occupancy costs. Store occupancy costs include rent, contingent rents,
common area maintenance and real estate taxes.
Store operating expenses. Store operating expenses include payroll, payroll
taxes, health benefits, insurance, credit card processing fees, depreciation,
licenses and taxes as well as marketing and advertising expenses.
General and administrative expenses. General and administrative expenses
include district and regional manager payroll, other corporate personnel payroll
and employee benefits, employment taxes, insurance, legal and other professional
fees and other corporate level expenses. Corporate level expenses are primarily
attributable to our corporate headquarters in New York.
Accounting Policies and Estimates
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires the
appropriate application of certain accounting policies, many of which requires
us to make estimates and assumptions about future events and their impact on
amounts reported in our financial statements and related notes. Since future
events and their impact cannot be determined with certainty, the actual results
will inevitably differ from our estimates. Such differences could be material
to the financial statements.
We believe our application of accounting policies, and the estimates
inherently required therein, are reasonable. These accounting policies and
estimates are regularly reevaluated, and adjustments are made when facts and
circumstances dictate a change. Historically, we have found our application of
accounting policies to be appropriate, and actual results have not differed
materially from those determined using necessary estimates.
Our accounting policies are more fully described in Note 1 to the financial
statements, located elsewhere in this document. We have identified certain
critical accounting policies which are described below.
16
Inventories. Merchandise inventory is carried at the lower of cost or
market using the retail method of accounting. We make assumptions to adjust the
value of inventory based on historical experience and current information. This
procedure inherently reduces the carrying value of inventories as markdowns
are initiated. These assumptions can have a significant impact on current and
future operating results and financial position.
Self Insurance. We are self-insured for losses and liabilities related
primarily to employee health and welfare claims. Losses are accrued based upon
our estimates of the aggregate liability for claims incurred using certain
actuarial assumptions followed in the insurance industry and based on Company
experience.
Revenue Recognition. Sales are recognized at the "point of sale," which
occurs when merchandise is sold in an "over-the-counter" transaction or upon
receipt by a customer. Sales of merchandise via our website are recognized at
the time of shipment to the customer. Our customers have the right to return
merchandise. Sales are reported net of actual and estimated returns. We maintain
a reserve for potential product returns and record, as a reduction to sales, a
provision for estimated product returns, which is determined based on historical
experience.
Deferred Rent. Many of our operating leases contain predetermined fixed
increases of the minimum rental rate during the initial lease term. For those
leases, the Company recognizes the related rental expense on a straight-line
basis and records the difference between the amounts charged to expense and
the rent paid as deferred rent. The Company receives construction allowances
upon entering certain store leases. These construction allowances are recorded
as reductions of the related leasehold improvements and are amortized over the
term of the related lease. The amortization is recorded as a reduction of rent
expense. Deferred construction allowances were $8.0 million and $5.2 million at
December 27, 2003 and December 28, 2002, respectively.
Results of Operations
The following table sets forth our operating results, expressed as a percentage
of net sales.
52 Weeks Ended
------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
Operating Results
Net sales 100.0% 100.0% 100.0%
Cost of sales 64.8 58.2 55.8
------------ ------------ ------------
Gross profit 35.2 41.8 44.2
Store operating expenses 28.5 28.6 29.4
General and administrative expenses 4.9 6.1 6.5
------------ ------------ ------------
Operating income 1.8 7.1 8.3
Other income (net) 1.0 0.1 0.1
Income before income taxes 2.9 7.3 8.4
Income taxes 1.1 2.8 3.3
------------ ------------ ------------
Net income 1.8 4.5 5.1
============ ============ ============
17
52 Weeks Ended December 27, 2003 (Fiscal 2003) Compared to 52 Weeks Ended
December 28, 2002 (Fiscal 2002)
Net sales. Net sales increased to $216.3 million from $200.3 million, an
increase of $15.9 million, or 8.0%, over the prior fiscal year. This increase
reflects $6.2 million of additional net sales as a result of a 3% increase in
comparable store sales. The remainder of the increase was the result of
additional net sales from non-comparable stores. We believe our new store
expansion and remodeling program will help to materially increase sales during
the next few years.
Gross profit. Gross profit increased to $95.5 million from $83.8 million,
an increase of $11.7 million, or 14.0%, over the prior fiscal year. As a
percentage of net sales, gross profit increased to 44.2% from 41.8%. This
increase in gross profit was the combined result of higher net sales and an
increase in gross profit margins, due to a more focused approach to inventory
management. We plan to increase inventory turns in future years, as we reduce
dress inventory levels, turns of which are historically slower than sportswear
inventory turns.
Store operating expenses. Store operating expenses increased to $63.5
million from $57.3 million, an increase of $6.2 million, or 10.9%, over the
prior fiscal year. This was due primarily to an increase in the total number of
new stores open. As a percentage of net sales, store operating expenses
increased to 29.4% from 28.6%, primarily due to an increase in payroll expense
of $3.0 million and an increase in advertising expense of $1.2 million. We
anticipate store operating expenses will run slightly higher than historical
levels, as a percent of sales in the short term, as we increase our rate of
store expansion.
General and administrative expenses. General and administrative expenses
increased to $14.1 million from $12.2 million, an increase of $1.9 million or
15.5% from the prior fiscal year. As a percentage of net sales, general and
administrative expenses increased to 6.5% from 6.1%. This increase was primarily
attributable to increase in corporate level payroll of $1.4 million and
professional fess of $289,000. We anticipate general and administrative expenses
will return to lower historical levels in the next few years, as we have
completed most of the headquarters staffing necessary to fuel the current store
expansion.
Other income. Other income increased to $273,000 from $260,000, primarily
attributable to higher average cash balances during fiscal 2003, partially
offset by lower interest rates in fiscal 2003. We expect interest income to
grow in the future due to stronger cash flows from operations and higher
interest rates, as the U.S. economy recovers.
Income taxes. Income taxes increased to $7.1 million from $5.6 million, an
increase of $1.5 million, over the same period last year. This increase was
attributable to higher taxable income, as well as an increase in the effective
tax rate from 38.6% in fiscal 2002 to 39.0% in fiscal 2003. The increase in
the overall effective income tax rate is attributable to increased levels of
federal taxable income subject to tax in a higher tax bracket, as well as a
change in the mix of income subject to tax in the various states in which we
conduct business.
Net income. As a result of the foregoing, net income increased to $11.1
million from $8.9 million, an increase of $2.2 million, over the same period
last year.
18
52 Weeks Ended December 28, 2002 (Fiscal 2002) Compared to 52 Weeks Ended
December 29, 2001 (Fiscal 2001)
Net sales. Net sales increased to $200.3 million from $180.8 million, an
increase of $19.6 million, or 10.8%, over the prior fiscal year. This increase
reflects $11.9 million of additional net sales as a result of a 7% increase in
comparable store sales. The remainder of this increase was the result of
additional net sales from non-comparable stores.
Gross profit. Gross profit increased to $83.8 million from $63.5 million,
an increase of $20.3 million, or 31.9%, over the prior fiscal year. This
increase was the combined result of higher net sales and increased gross profit
margins. As a percentage of net sales, gross profit increased to 41.8% from
35.2%. This increase as a percentage of net sales was primarily due to higher
initial margins resulting from a reduction in the number of our vendors and the
number of stock keeping units. These reductions enabled us to commit to bulk
fabric purchases and increased our ability to receive favorable pricing from
vendors.
Store operating expenses. Store operating expenses increased to $57.3
million from $51.3 million, an increase of $6.0 million, or 11.8%, over the
prior fiscal year. As a percentage of net sales, store operating expenses
increased to 28.6% from 28.4%, primarily due to an increase in marketing and
advertising expenses of $2.4 million which were partially offset by a reduction
in store operating expenses as a percentage of sales, due to the fixed nature
of most store operating expenses.
General and administrative expenses. General and administrative expenses
increased to $12.2 million from $8.9 million, an increase of $3.3 million or
36.5%, over the prior fiscal year. As a percentage of net sales, general and
administrative expenses increased to 6.1% from 4.9%, primarily due to a higher
corporate-level payroll and employee-related costs.
Other income. Income decreased to $260,000 from $1.9 million in the prior
fiscal year, primarily attributable to the $1.5 million of other income in last
year's period from the settlement of a trademark litigation claim undertaken
against a third party, net of professional fees related to the lawsuit. Other
income generally consists of interest income.
Income taxes. Income taxes increased to $5.6 million from $1.9 million, an
increase of $3.7 million over the prior fiscal year. This increase was
attributable to higher taxable income, as well as an increase in the effective
tax rate from 36.5% in fiscal 2001 to 38.6% in fiscal 2002. The increase in the
overall effective income tax rate is attributable to increased levels of federal
taxable income subject to tax in a higher tax bracket, as well as a change in
the mix of income subject to tax in the various states in which we conduct
business.
Net income. As a result of the foregoing, the net income increased to $8.9
million from $3.3 million, an increase of $5.6 million from the same period last
year.
19
Quarterly Results and Seasonality
We experience seasonal and quarterly fluctuations in our net sales and
operating income. Our quarterly results of operations may fluctuate
significantly as a result of a variety of factors, including the timing of new
store openings, fashion trends and shifts in timing of certain holidays. Our
business is subject to seasonal influences, characterized by highest sales
during our fourth fiscal quarter (October, November and December) and lowest
sales during our third fiscal quarter (July, August and September).
The following table includes our unaudited quarterly results of operations
data for each of the eight quarters during the two-year period ended December
27, 2003. We derived this data from our unaudited quarterly consolidated
financial statements. We believe that we have prepared this information on the
same basis as our audited consolidated financial statements and that we have
included all necessary adjustments, consisting only of normal recurring
adjustments, to present fairly the selected quarterly information when read in
conjunction with our audited annual consolidated financial statements and the
notes to those statements included elsewhere in this document. The operating
results for any particular quarter are not necessarily indicative of the
operating results for any future period.
13 Weeks Ended
---------------------------------------------------------------------------------------
Mar. 30, June 29, Sept. 28, Dec. 28, Mar. 29, June 28, Sept. 27, Dec. 27,
2002 2002 2002 2002 2003 2003 2003 2003
---------------------------------------------------------------------------------------
(Unaudited)
(Dollars in thousands)
Operating Results
Net sales $47,887 $51,557 $42,166 $58,705 $48,098 $56,194 $47,343 $64,621
Gross profit 19,623 21,894 16,847 25,461 20,037 24,914 20,222 30,352
Operating income 2,923 4,662 162 6,826 2,657 5,735 998 8,788
Net income 1,856 2,960 103 4,022 1,641 3,541 614 5,293
As a Percentage of Net Sales
Net sales 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Gross profit 41.0% 42.5% 40.0% 43.4% 41.7% 44.3% 42.7% 47.0%
Operating income 6.1% 9.0% 0.4% 11.6% 5.5% 10.2% 2.1% 13.6%
Net income 3.9% 5.7% 0.2% 6.9% 3.4% 6.3% 1.3% 8.2%
Selected Operating Data
Number of stores open at end
of period 224 224 227 234 237 240 244 255
Comparable store sales
increase 5% 8% 7% 8% (3%) 4% 3% 4%
Liquidity and Capital Resources
Our cash requirements are primarily for the construction of new stores and
inventory for new stores as well as the remodeling of existing stores. We have
historically satisfied our cash requirements principally through cash flow from
operations. Cash flows have increased significantly in fiscal 2002 and 2003, due
to the dramatic increase in gross margin contribution. We expect this trend to
continue over the next several years. As of December 27, 2003, we had working
capital of approximately $41.0 million, which included cash and marketable
securities of $36.6 million.
20
During fiscal 2003, we generated $18.1 million in cash from operating
activities due primarily to net income, depreciation of $5.6 million, an
increase in accrued liabilities and compensation of $2.3 million, an increase
in accounts payable of $2.4 million, tax benefit from stock option exercises of
$2.9 million, partially offset by an increase in accounts receivable of $1.9
million, and an increase in inventories of $4.7 million, primarily due to the
increase in new stores open of 24 stores. During fiscal 2002, we generated
$19.9 million in cash from operating activities due primarily to net income,
depreciation of $5.0 million, a decrease in receivables of $1.6 million, an
increase in accounts payable of $899,000 and an increase in accrued liabilities
and compensation of $3.6 million. During fiscal 2001, we generated $9.6 million
in cash from operating activities due primarily to net income, depreciation of
$4.9 million, a decrease in inventory of $2.4 million and a decrease in accounts
receivable of $1.0 million, offset in part by a decrease in accounts payable of
$1.2 million.
Cash used in investing activities was approximately $17.3 million for
fiscal 2003, $21.7 million for fiscal 2002 and $4.2 million for fiscal 2001.
These amounts were used for the purchase of marketable securities as well as
the payment for equipment and leasehold improvements in new and remodeled
stores. Our capital requirements depend primarily on the number of new stores
we open, the number of existing stores we remodel and the timing of these
expenditures. Projected capital expenditures for fiscal 2004 to fund new store
openings and remodelings are approximately $14.0 to $15.0 million.
Based on our experience with new store openings, we estimate that the
average net investment to open new stores is approximately $175,000 to $225,000,
which includes new store opening expenses and initial inventory, net of landlord
contributions. We estimate that the average net investment to remodel an
existing store is approximately $200,000 to $300,000, net of landlord
contributions.
Cash provided by (used in) financing activities was negligible in fiscal
2001 and fiscal 2002. During fiscal 2003, we received net proceeds of $5.8
million from stock issuances and stock option exercises.
We have a line of credit with Fleet Bank, N.A., permitting us to borrow up
to $15.0 million on a revolving basis. At December 27, 2003, there was no
outstanding balance under this credit facility. Amounts outstanding under the
credit facility bear interest at a maximum annual rate equal to the bank's
prime rate, currently 4.00%. The agreement relating to this facility contains
selected financial and other covenants. In addition, the credit facility
contains restrictions on our ability to make capital expenditures, incur
indebtedness or create or incur liens on our assets. While this facility is
unsecured, if a default occurs under the facility, we are required to grant the
lender a security interest in our inventory and accounts receivable. We have
at all times been in compliance with all loan covenants. This facility currently
expires in November 2005.
We believe that cash flows from operations, our current available cash and
funds available under our revolving credit facility will be sufficient to meet
our working capital needs and contemplated new store opening expenses for at
least the next 12 months. If our cash flow from operations should decline
significantly or if we should accelerate our store expansion or remodeling
program, it may be necessary for us to seek additional sources of capital.
21
Contractual Obligations and Commercial Commitments
The following tables summarize our minimum contractual commitments and
commercial obligations as of December 27, 2003:
Payments Due in Period
--------------------------------------------------
Within After
Total 1 Year 2-3 Years 4-5 Years 5 Years
-------- -------- --------- --------- -------
(In thousands)
Contractual Obligations
Employment contracts $ 1,542 $ 500 $ 1,000 $ 42 $ -
Operating leases 133,105 20,850 35,051 29,125 48,079
-------- -------- -------- -------- -------
Total $134,647 $ 21,350 $ 36,051 $ 29,167 $48,079
======== ======== ======== ======== =======
Payments Due in Period
--------------------------------------------------
Within After
Total 1 Year 2-3 Years 4-5 Years 5 Years
-------- -------- --------- --------- -------
(In thousands)
Commercial Commitments
Credit facility $ - $ - $ - $ - $ -
Letter of credit 2,116 2,116 - - -
-------- -------- -------- -------- -------
Total $ 2,116 $ 2,116 $ - $ - $ -
======== ======== ======== ======== =======
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK
Our market risk relates primarily to changes in interest rates. We bear the
risk in two specific ways. First, the revolving credit facility carries a
variable interest rate that is tied to market indices and, therefore, the
statement of income and cash flows will be exposed to changes in interest rates.
As of December 27, 2003, we had no borrowing under our credit facility. However,
we may borrow funds under the revolving credit facility, as needed.
The second component of interest rate risk involves the short-term
investment of excess cash in short-term, investment-grade interest-bearing
securities. These investments are included in cash and equivalents as well as
marketable securities on our balance sheet, If there are changes in interest
rates, those changes would affect the investment income we earn on these
investments and, therefore, impact our cash flows and results of operations.
Recent Accounting Pronouncements
In September 2001, the FASB issued SFAS No. 143, "Accounting for Asset
Retirement Obligations", which addresses the accounting and financial reporting
for legal obligations associated with the retirement of tangible long-lived
assets and the associated retirement costs. The provisions of SFAS No. 143 will
22
be effective for our financial statements for the 2003 fiscal year. The adoption
of this standard did not have a significant impact on our financial position,
earnings or cash flows.
In June 2002, FASB Statement No. 146, "Accounting for Costs Associated with
Exit or Disposal Activities", was issued. Statement 146 addresses financial
accounting and reporting for costs associated with exit or disposal activities
and nullifies EITF Issue No. 94-3, "Liability Recognition for Certain Employee
Termination Benefits and Other Costs to Exit an Activity". The provisions of
Statement 146 were effective for exit or disposal activities initiated after
December 31, 2002, with early application encouraged. The adoption of this
standard did not have a significant impact on our financial position, earnings
or cash flows.
On December 31, 2002, the FASB issued Statement No. 148, "Accounting for
Stock-Based Compensation-Transition and Disclosure", which amends FASB Statement
No. 123, "Accounting for Stock-Based Compensation". This Statement amends FASB
Statement No. 123, "Accounting for Stock-Based Compensation", to provide
alternative methods of transition for a voluntary change to the fair value
method of accounting for stock-based employee compensation. In addition,
Statement 148 amends the disclosure requirements of Statement 123 to require
prominent disclosures in both annual and interim financial statements. We will
continue to recognize stock-based compensation under SFAS 123, and in accordance
with FASB Statement No. 148, we will include required disclosures for interim
reporting purposes.
In April 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133
on Derivative Instruments and Hedging Activities." This Statement amends and
clarifies accounting for derivative instruments, including certain derivative
instruments embedded in other contracts, and for hedging activities under
Statement 133. This Statement is effective for contracts entered into or
modified after June 30, 2003 and for hedging relationships designated after June
30, 2003. The guidance should be should be applied prospectively. The adoption
of this statement did not have any effect on our financial position and results
of operations.
In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of both Liabilities and Equity."
This Statement establishes standards for how an issuer classifies and measures
certain financial instruments with characteristics of both liabilities and
equity. It requires that an issuer classify a financial instrument that is
within its scope as a liability (or an asset in some circumstances). Among
other things, the Statement does not affect the classification or measurement of
convertible bonds, puttable stock, or other outstanding shares that are
conditionally redeemable. This Statement is effective for financial instruments
entered into or modified after May 31, 2003, and otherwise will be effective
as of December 28, 2003, except for mandatorily redeemable financial
instruments. The statement is to be implemented by reporting the cumulative
effect of a change in an accounting principle for financial instruments created
before the issuance date of the Statement and still existing at the beginning of
the interim period of adoption. The Company currently does not have any
financial instruments that are within the scope of this Statement.
In November 2002, the FASB issued FASB Interpretation 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including Indirect
Guarantees of Indebtedness to Others, an interpretation of FASB Statements No.
5, 57 and 107 and a rescission of FASB Interpretation No. 34", which enhances
the disclosures to be made by a guarantor in its interim and annual financial
23
statements about its obligations under guarantees issued. It clarifies that a
guarantor is required to recognize, at the inception of a guarantee, a liability
for the fair value of the obligation undertaken in issuing the guarantee. The
initial recognition and measurement provisions of this Interpretation are
applicable on a prospective basis to guarantees issued or modified after
December 31, 2002, irrespective of the guarantor's fiscal year-end. The
disclosure requirements in this Interpretation are effective for financial
statements of interim or annual periods ending after December 15, 2002. The
adoption of this interpretation had no impact on our financial position and
results of operations.
In December 2003, the FASB issued FASB Interpretation No. 46 (revised
December 2003), "Consolidation of Variable Interest Entities", which addresses
how a business enterprise should evaluate whether it has a controlling financial
interest in an entity through means other than voting rights and accordingly
should consolidate the entity. FIN 46R replaces FASB Interpretation No. 46,
"Consolidation of Variable Interest Entities", which was issued in January 2003.
The Company will be required to apply FIN 46R to variable interests in VIEs
created after December 31, 2003. For variable interests in VIEs created before
January 1, 2004, the Interpretation will be applied beginning on January 1,
2005. For any VIEs that must be consolidated under FIN 46R that were created
before January 1, 2004, the assets, liabilities and noncontrolling interests
of the VIE initially would be measured at their carrying amounts with any
difference between the net amount added to the balance sheet and any previously
recognized interest being recognized as the cumulative effect of an accounting
change. If determining the carrying amounts is not practicable, fair value at
the date FIN 46R first applies may be used to measure the assets, liabilities
and noncontrolling interest of the VIE. We have determined that the adoption of
FIN46R will not have any impact on our financial position and results of
operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's unaudited selected quarterly financial data is incorporated
herein by reference to Note 11 to the Company's consolidated financial
statements on page F-21. The Company's consolidated financial statements and the
report of independent public accountants are listed at Item 16 of this Report
and are included in this Form 10-K on pages F-1 through F-22.
ITEM 9. CHANGES IN AND/OR DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
24
ITEM 9A. CONTROLS AND PROCEDURES
We maintain a system of controls and procedures designed to provide
reasonable assurance as to the reliability of the financial statements and other
disclosures included in this report, as well as to safeguard assets from
unauthorized use or disposition. We evaluated the effectiveness of the design
and operation of our disclosure controls and procedures under the supervision
and with the participation of management, including our Chief Executive Officer
and Principal Financial and Accounting Officer, within 90 days prior to the
filing date of this report. Based upon the evaluation, our Chief Executive
Officer and Principal Financial and Accounting Officer concluded that our
disclosure controls and procedures are effective in timely alerting them to
material information required to be included in our periodic Securities and
Exchange Commission filings. No significant changes were made to our internal
controls or other factors that could significantly affect these controls
subsequent to the date of their evaluation.
PART III
The information called for by Items 10, 11, 12, 13, and 14 is incorporated
herein by reference from the definitive proxy statement to be filed by the
Company in connection with its 2004 Annual Meeting of Shareholders.
25
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. The financial statements listed in the "Index To The Consolidated
Financial Statements" on page F-2 are filed as a part of this report.
2. Financial statement schedules are included on page F-22 or are omitted
because they are not applicable or the required information is shown
in the financial statements or notes thereto.
3. Exhibits (9)
3.1 Articles of Incorporation of the Company and all amendments
thereto (2)
3.2 Bylaws of the Company (1)
10.1 Lease, dated July 28, 2003, between the Company, as Tenant, and
New 1440 Broadway Partners, LLC, as Landlord, for the Company's
offices at 1440 Broadway, New York, New York
10.2 1994 Stock Option Plan of the Company (3) (11)
10.3 Form of Option Agreement relating to Options issued under the
1994 Stock Option Plan (4) (11)
10.4 2000 Stock Option Plan of the Company (7) (11)
10.5 Form of Option Agreement relating to Options issued under the
2000 Stock Option Plan (8) (11)
10.6 2003 Stock Option Plan of the Company (9)
10.7 Form of Option Agreement relating to Options issued under the
2003 Stock Option Plan
10.8 Second Amended and Restated Revolving Credit Agreement (the
"Credit Agreement") dated as of August 26, 1996, between Fleet
Bank, N.A. (Successor in interest to National Westminster Bank,
New Jersey) and the Company (4)
10.9 Security Agreement, dated as of August 26, 1996 (the "Security
Agreement"), between the Company and Fleet Bank, N.A. (4)
10.10 Amended and Restated Asset Purchase Agreement dated August 10,
1998 between Lillie Rubin Fashions, Inc. and the Company (5)
26
10.11 Master Amendment, dated July 19, 1999, to Revolving Credit
Agreement and Security Agreement (6)
10.12 Employment Agreement, dated September 30, 2003, between the
Company and Brian P. Woolf (10) (11)
10.13 Second Master Amendment, dated November 21, 2002, to Revolving
Credit Agreement
11.1 Calculation of Basic and Fully Diluted Earnings per Common Share
12.1 Statements re: Computation of Ratios
23.1 Consent of KPMG LLP
31.1 Certification of the Chief Executive Officer pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of the Principal Financial and Accounting Officer
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of the Chief Executive Officer and Principal
Financial and Accounting Officer pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
(1) Incorporated by reference to the Company's Registration Statement on Form
S-18, dated December 29, 1980.
(2) Incorporated by reference to the Company's Current Report on Form 8-K,
dated September 15, 1993.
(3) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994.
(4) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended December 28, 1996.
(5) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended January 2, 1999.
(6) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended January 1, 2000.
(7) Incorporated by reference to the Company's Definitive Proxy Statement
filed on September 18, 2001.
27
(8) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended December 29, 2001.
(9) Incorporated by reference to the Company's Definitive Proxy Statement
filed on October 6, 2003.
(10) Incorporated by reference to the Company's Registration Statement on Form
S-3, dated November 17, 2003.
(11) Exhibits 10.2 through 10.7 and 10.12 are management contracts or
compensatory plans or arrangements, which are required to be filed as an
exhibit pursuant to Item 16(c) of this Annual Report on Form 10-K.
(12) A Stockholder may obtain a copy of any of the exhibits included in the
Annual Report on Form 10-K upon payment of a fee to cover the reasonable
expenses of furnishing such exhibits, by written request to CACHE, Inc.,
at 1440 Broadway, 5th Floor, New York, New York 10018 Attention: Chief
Operating Officer.
(b) Reports on Form 8-K
1. Form 8-K, dated January 7, 2004, regarding the announcement of our
earnings for the third quarter ended September 27, 2003.
2. Form 8-K, dated March 8, 2004, regarding the announcement of our
earnings for the fourth quarter and year ended December 27, 2003.
28
Signatures
Pursuant to the requirement of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
Date: March 24, 2004 CACHE, INC.
(Registrant)
By: /s/Brian Woolf
--------------------------
Brian Woolf
Chairman of the Board
and Chief Executive 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/BRIAN WOOLF Chairman of the Board; March 24, 2004
- ----------------------
BRIAN WOOLF
/s/THOMAS E. REINCKENS President/Director March 24, 2004
- ---------------------- (Principal Financial
THOMAS E. REINCKENS and Accounting Officer)
/s/ARTHUR S. MINTZ Director March 24, 2004
- ----------------------
ARTHUR S. MINTZ
/s/ANDREW M. SAUL Director March 24, 2004
- ----------------------
ANDREW M. SAUL
/s/JOSEPH E. SAUL Director March 24, 2004
- ----------------------
JOSEPH E. SAUL
/s/MORTON J. SCHRADER Director March 24, 2004
- ----------------------
MORTON J. SCHRADER
29
CACHE, INC. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
FISCAL YEARS ENDED DECEMBER 27, 2003,
DECEMBER 28, 2002,
AND
DECEMBER 29, 2001
F-1
CACHE, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
INDEX PAGE
Independent Auditors' Report F-3
Consolidated Balance Sheets F-4
Consolidated Statements of Income F-5
Consolidated Statements of Stockholders' Equity F-6
Consolidated Statements of Cash Flows F-7
Notes to Consolidated Financial Statements F-8
Valuation and Qualifying Accounts F-22
F-2
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders
Cache, Inc.:
We have audited the accompanying consolidated balance sheets of Cache, Inc. and
subsidiaries as of December 27, 2003 and December 28, 2002 and the related
consolidated statements of income, stockholders' equity, and cash flows for
each of the years in the three-year period ended December 27, 2003. In
connection with our audits of the consolidated financial statements, we also
have audited the financial schedule. These consolidated financial statements
and financial statement schedule are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements and financial statement schedule based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we
plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures
in the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Cache, Inc. and
subsidiaries as of December 27, 2003 and the results of their operations and
their cash flows for each of the years in the three-year period ended December
27, 2003, in conformity with accounting principles generally accepted in the
United States of America. Also, in our opinion, the related financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly, in all material respects, the
information set forth therein.
New York, New York
February 20, 2004 /s/ KPMG LLP
F-3
CACHE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
December 28, December 27,
2002 2003
CURRENT ASSETS ------------ ------------
Cash and equivalents (Note 1) $10,287,000 $16,887,000
Marketable securities 14,392,000 19,746,000
Receivables, net (Note 2) 2,677,000 4,614,000
Notes receivable from related parties (Note 6) 321,000 ---
Inventories 22,065,000 26,724,000
Deferred income taxes (Note 9) 816,000 936,000
Prepaid expenses and other current assets 1,020,000 1,239,000
------------ ------------
Total Current Assets 51,578,000 70,146,000
EQUIPMENT AND LEASEHOLD IMPROVEMENTS, net (Note 3) 18,553,000 25,010,000
OTHER ASSETS 817,000 873,000
DEFERRED INCOME TAXES, net (Note 9) 349,000 ---
------------ ------------
Total Assets $71,297,000 $96,029,000
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $11,988,000 $14,362,000
Accrued compensation 3,629,000 4,675,000
Accrued liabilities (Note 4) 9,307,000 10,075,000
------------ ------------
Total Current Liabilities 24,924,000 29,112,000
OTHER LIABILITIES (Note 7) 1,081,000 1,088,000
DEFERRED INCOME TAXES, net (Note 9) --- 687,000
COMMITMENTS AND CONTINGENCIES (Note 8)
STOCKHOLDERS' EQUITY
Common stock, par value $.01; authorized, 20,000,000
shares; issued and outstanding 9,981,150 shares (Note 10) 91,000 100,000
Additional paid-in capital 19,609,000 28,361,000
Retained earnings 25,592,000 36,681,000
------------ ------------
Total Stockholders' Equity 45,292,000 65,142,000
------------ ------------
Total Liabilities and Stockholders' Equity $71,297,000 $96,029,000
============ ===========
The accompanying Notes to Consolidated Financial Statements are an integral part of these statements.
F-4
CACHE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
52 Weeks Ended
--------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
NET SALES $180,750,000 $200,315,000 $216,256,000
COST OF SALES, including buying
and occupancy (Note 8) 117,201,000 116,490,000 120,731,000
------------ ------------ ------------
GROSS PROFIT 63,549,000 83,825,000 95,525,000
EXPENSES
Store operating expenses 51,285,000 57,322,000 63,546,000
General and administrative expenses 8,929,000 12,190,000 14,074,000
------------ ------------ ------------
TOTAL EXPENSES 60,214,000 69,512,000 77,620,000
------------ ------------ ------------
OPERATING INCOME 3,335,000 14,313,000 17,905,000
------------ ------------ ------------
OTHER INCOME (EXPENSE)
Litigation settlement (net) 1,518,000 --- ---
Interest income 300,000 260,000 259,000
Miscellaneous income (net) 40,000 --- 14,000
------------ ------------ ------------
TOTAL OTHER INCOME 1,858,000 260,000 273,000
------------ ------------ ------------
INCOME BEFORE INCOME TAXES 5,193,000 14,573,000 18,178,000
INCOME TAX PROVISION (Note 9) 1,895,000 5,632,000 7,089,000
------------ ------------ ------------
NET INCOME $ 3,298,000 $ 8,941,000 $ 11,089,000
============ ============ ============
BASIC EARNINGS PER SHARE $0.36 $0.98 $1.17
============ ============ ============
DILUTED EARNINGS PER SHARE $0.36 $0.93 $1.13
============ ============ ============
BASIC WEIGHTED AVERAGE
SHARES OUTSTANDING 9,091,000 9,100,000 9,504,000
============ ============ ============
DILUTED WEIGHTED AVERAGE
SHARES OUTSTANDING 9,229,000 9,632,000 9,814,000
============ ============ ============
The accompanying Notes to Consolidated Financial Statements are an integral part of these statements.
F-5
CACHE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Additional
Common Paid-In Retained
Stock Capital Earnings Total
-------- ----------- ----------- -----------
Balance December 30, 2000 $ 91,000 $19,564,000 $13,353,000 $33,008,000
- ---------------------------------------
Net Income --- --- 3,298,000 3,298,000
-------- ----------- ----------- -----------
Balance December 29, 2001 91,000 19,564,000 16,651,000 36,306,000
- --------------------------------------- -------- ----------- ----------- -----------
Net Income --- --- 8,941,000 8,941,000
Issuance of common stock --- 45,000 --- 45,000
-------- ----------- ----------- -----------
Balance December 28, 2002 91,000 9,609,000 25,592,000 45,292,000
- --------------------------------------- -------- ----------- ----------- -----------
Net Income --- --- 11,089,000 11,089,000
Tax benefit from stock option exercises --- 2,933,000 --- 2,933,000
Issuance of common stock 9,000 5,819,000 --- 5,828,000
-------- ----------- ----------- -----------
Balance December 27, 2003 $100,000 $28,361,000 $36,681,000 $65,142,000
- --------------------------------------- ======== =========== =========== ===========
The accompanying Notes to Consolidated Financial Statements are an integral part of these statements.
F-6
CACHE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
52 Weeks Ended
---------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
Cash Flows From ------------ ------------ ------------
Operating Activities:
Net income $ 3,298,000 $ 8,941,000 $11,089,000
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 4,973,000 4,963,000 5,570,000
Income tax benefit from stock option exercises --- --- 2,933,000
Gain on litigation settlement (1,518,000) --- ---
Decrease (increase) in deferred tax assets 688,000 (24,000) 916,000
Reversal of future rent escalations (289,000) (116,000) (10,000)
Change in assets and liabilities:
Decrease (increase) in receivables 1,040,000 1,641,000 (1,937,000)
Decrease in notes receivable 350,000 50,000 321,000
from related parties
Decrease (increase) in inventories 2,362,000 (304,000) (4,659,000)
Decrease (increase) in prepaid expenses 194,000 (308,000) (219,000)
Increase (decrease) in accounts payable (1,227,000) 899,000 2,374,000
Increase (decrease) in accrued liabilities
and accrued compensation (180,000) 4,125,000 1,751,000
----------- ----------- -----------
Net cash provided by operating activities 9,691,000 19,867,000 18,129,000
----------- ----------- -----------
Cash Flows From
Investing Activities:
Purchase of marketable securities --- (21,184,000) (19,746,000)
Maturities of marketable securities --- 6,792,000 14,392,000
Payments for equipment
and leasehold improvements (4,330,000) (7,342,000) (11,947,000)
----------- ----------- -----------
Net cash used in investing activities (4,330,000) (21,734,000) (17,301,000)
----------- ----------- -----------
Cash Flows From
Financing Activities:
Proceeds from issuance of common stock --- 45,000 5,828,000
Other, net (8,000) 8,000 (56,000)
----------- ----------- -----------
Net cash (used in) provided by financing activities (8,000) 53,000 5,772,000
----------- ----------- -----------
Net increase (decrease) in cash and equivalents 5,353,000 (1,814,000) 6,600,000
Cash and equivalents, at beginning of period 6,748,000 12,101,000 10,287,000
----------- ----------- -----------
Cash and equivalents, at end of period $12,101,000 $10,287,000 $16,887,000
=========== =========== ===========
The accompanying Notes to Consolidated Financial Statements are an integral part of these statements.
F-7
CACHE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Cache, Inc. (together with its subsidiaries, the "Company") owns and
operates two chains of women's apparel specialty stores, of which 227 stores
(as of December 27, 2003) are operated under the trade name "Cache". In
addition, 28 stores are operated under the trade name "Lillie Rubin". The
Company specializes in the sale of high fashion women's apparel and accessories
in the better to expensive price range.
Basis of Consolidation
The consolidated financial statements include the accounts of the Company
and its subsidiaries, all of which are wholly owned. All significant
intercompany balances and transactions have been eliminated.
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires the
appropriate application of certain accounting policies, many of which requires
us to make estimates and assumptions about future events and their impact on
amounts reported in our financial statements and related notes. Since future
events and their impact cannot be determined with certainty, the actual results
will inevitably differ from our estimates. Such differences could be material
to the financial statements.
We believe our application of accounting policies, and the estimates
inherently required therein, are reasonable. These accounting policies and
estimates are regularly reevaluated, and adjustments are made when facts and
circumstances dictate a change. Historically, we have found our application of
accounting policies to be appropriate, and actual results have not differed
materially from those determined using necessary estimates.
Fiscal Reporting Period
The Company reports its annual results of operations based on fiscal
periods comprised of 52 or 53 weeks, which is in accordance with industry
practice. Results for fiscal 2001, 2002 and 2003 include 52 weeks.
Fair Value of Financial Instruments
The carrying amounts of accounts receivable, accounts payable and accrued
liabilities approximate fair value due to the short-term nature of such items.
F-8
Cash Equivalents
The Company considers all highly liquid investments with a maturity of
three months or less when purchased to be cash equivalents.
Marketable Securities:
Marketable securities at December 27, 2003 and December 28, 2002 primarily
consist of short-term United State Treasury bills. The Company classifies its
short-term investments as held-to-maturity. Held-to-maturity securities are
those securities in which the Company has the ability and intent to hold the
securities until maturity. Because the Company's held-to-maturity securities
mature within one year of the balance sheet date, the securities are classified
as short-term marketable securities. Held-to-maturity debt securities are
recorded at amortized cost, adjusted for the amortization or accretion of
premiums or discounts and such carrying values approximate fair value. A decline
in the market value of any held-to-maturity security below cost that is deemed
to be other than temporary results in a reduction in carrying amount to fair
value. The impairment is charged to earnings and a new cost basis for the
security is established. Premiums and discounts are amortized or accreted over
the life of the related held-to-maturity as an adjustment to yield using the
effective interest method. Interest income is recognized when earned.
Inventories
Merchandise inventory is carried at the lower of cost or market using the
retail method of accounting. We make assumptions to adjust the value of
inventory based on historical experience and current information. This procedure
inherently reduces the carrying value of inventories as markdowns are initiated.
These assumptions can have a significant impact on current and future operating
results and financial position.
Equipment and Leasehold Improvements
Equipment and leasehold improvements are stated at cost. Depreciation and
amortization are computed using the straight-line method over the estimated
useful lives of the related assets which generally range from three to 10 years.
For income tax purposes, accelerated methods are generally used. Leasehold
improvements are amortized over the shorter of their useful life or lease term.
The Company adopted SFAS No. 144, "Accounting for the Impairment or
Disposal of Long-Lived Assets", on December 30, 2001. The adoption of SFAS No.
144 did not affect the Company's financial statements. In accordance with
SFAS No. 144, long-lived assets, such as property, and equipment, and purchased
intangibles subject to amortization, are reviewed for impairment whenever events
or changes in circumstances indicate that the carrying amount of an asset may
not be recoverable. Assets are grouped and evaluated at the lowest level for
which there are identifiable cash flows that are largely independent of the
cash flows of other groups of assets. The Company has identified this lowest
level to be principally individual stores. Recoverability of assets to be held
and used is measured by a comparison of the carrying amount of an asset to
estimated undiscounted future cash flows expected to be generated by the asset.
If the carrying amount of an asset exceeds its estimated future cash flows, an
F-9
impairment charge is recognized by the amount by which the carrying amount of
the asset exceeds the fair value of an asset.
Assets to be disposed of would be separately presented in the balance sheet
and reported at the lower of the carrying amount or fair value less costs to
sell, and are no longer depreciated. The assets and liabilities of a disposed
group classified as held for sale would be presented separately in the
appropriate asset and liability sections of the balance sheet.
Self Insurance
We are self-insured for losses and liabilities related primarily to
employee health and welfare claims. Losses are accrued based upon our estimates
of the aggregate liability for claims incurred using certain actuarial
assumptions followed in the insurance industry and based on Company experience.
Goodwill
Goodwill represents the excess of costs over fair value of assets of
businesses acquired. The Company adopted the provisions of FASB Statement No.
142, "Goodwill and Other Intangible Assets", as of January 1, 2002. Pursuant to
Statement 142, goodwill and intangible assets acquired in a purchase business
combination and determined to have an indefinite useful life are not amortized,
but instead are tested for impairment at least annually in accordance with the
provisions of Statement 142. Statement 142 also requires that intangible assets
with estimable useful lives be amortized over their respective estimated useful
lives to their estimated residual values, and reviewed for impairment in
accordance with FASB Statement No. 144, Accounting for Impairment or Disposal
of Long-Lived Assets.
Goodwill is tested annually for impairment, and is tested for impairment
more frequently if events and circumstances indicate that the asset might be
impaired. An impairment loss is recognized to the extent that the carrying
amount exceeds the asset's fair value. This determination is made at the
reporting unit level and consists of two steps. First, the Company determines
the fair value of a reporting unit and compares it to its carrying amount.
Second, if the carrying amount of a reporting unit exceeds its fair value, an
impairment loss is recognized for any excess of the carrying amount of the
reporting unit's goodwill over the implied fair value of that goodwill. The
implied fair value of goodwill is determined by allocating the fair value of
the reporting unit in a manner similar to a purchase price allocation, in
accordance with FASB Statement No. 141, "Business Combinations". The residual
fair value after this allocation is the implied fair value of the reporting
unit goodwill.
The Company recorded goodwill totaling $440,000 related to the purchase of
Lillie Rubin assets in fiscal 1999. Accumulated amortization at December 27,
2003 and December 28, 2002 was $100,000, respectively.
Revenue Recognition
Sales are recognized at the "point of sale," which occurs when merchandise
is sold in an "over-the-counter" transaction or upon receipt by a customer.
Sales of merchandise via our website are recognized at the time of shipment to
the customer. Our customers have the right to return merchandise. Sales are
reported net of actual and estimated returns. We maintain a reserve for
F-10
potential product returns and record, as a reduction to sales, a provision for
estimated product returns, which is determined based on historical experience.
Amounts billed to customers for shipping and handling fees are included in
net sales at the time of shipment. Costs incurred for shipping and handling are
included in cost of sales.
Deferred Rent
Many of our operating leases contain predetermined fixed increases of the
minimum rental rate during the initial lease term. For these leases, the
Company recognizes the related rental expense on a straight-line basis and
records the difference between the amount charged to expense and the rent paid
as deferred rent. The Company receives construction allowances upon entering
certain store leases. These construction allowances are recorded as reductions
of the related leasehold improvements and are amortized over the term of the
related lease. The amortization is recorded as a reduction of rent expense.
Deferred construction allowances were $8.0 million and $5.2 million at December
27, 2003 and December 28, 2002, respectively.
Advertising costs
Costs associated with advertising are charged to store operating expense
when the advertising first takes place. We spent $1,742,000, $4,375,000, and
$5,610,000 on advertising in fiscal 2001, 2002 and 2003, respectively.
Pre-Opening Store Expenses
Expenses associated with the opening of new stores are expensed as
incurred.
Employee Benefit Plan
Employees are eligible to participate in the Company's 401(k) plan if they
have been employed by the Company for one year, have reached age 21, and work
at least 1,000 hours annually. Generally, employees can defer up to 18% of
their gross wages up to the maximum limit allowable under the Internal Revenue
Code. We can make a discretionary matching contribution for the employee.
Employer contributions to the plan for fiscal 2001, fiscal 2002 and fiscal 2003
were $184,000, $190,000, and $195,000, respectively.
F-11
Income Taxes
The Company accounts for income taxes in accordance with SFAS No. 109,
"Accounting for Income Taxes." This statement requires the Company to recognize
deferred tax liabilities and assets for the expected future tax consequences of
events that have been recognized in the Company's financial statements or tax
returns. Under this method, deferred tax liabilities and assets are determined
based on the difference between the financial statement carrying amounts and tax
bases of assets and liabilities, using applicable tax rates for the years in
which the differences are expected to reverse.
Stock Option Plans
As permitted by FASB Statement No. 123, "Accounting for Stock-Based
Compensation", the Company has elected to continue to apply the intrinsic-
value-based method of accounting described in, and has adopted the disclosure
requirements of Statement 123, as amended. Under this method, compensation
expense is recorded on the date of grant only if the current market price of
the underlying stock exceeded the exercise price. FASB Statement No. 123,
"Accounting for Stock-Based Compensation" and FASB Statement No. 148,
"Accounting for Stock-Based Compensation - Transition and Disclosure, an
amendment of FASB Statement No. 123", established accounting and disclosure
requirements using a fair-value-based methods of accounting for stock-based
employee compensation plans.
Earnings per Share
Basic earnings per share (EPS) is computed as net earnings divided by
the weighted average number of common shares outstanding for the period. Diluted
EPS reflects the potential dilution that could occur from common shares issued
through the exercise of outstanding dilutive stock options.
Recent Accounting Pronouncements
In September 2001, the FASB issued SFAS No. 143, "Accounting for Asset
Retirement Obligations", which addresses the accounting and financial reporting
for legal obligations associated with the retirement of tangible long-lived
assets and the associated retirement costs. The provisions of SFAS No. 143 will
be effective for our financial statements for the 2003 fiscal year. The adoption
of this standard did not have a significant impact on our financial position,
earnings or cash flows.
In June 2002, FASB Statement No. 146, "Accounting for Costs Associated with
Exit or Disposal Activities", was issued. Statement 146 addresses financial
accounting and reporting for costs associated with exit or disposal activities
and nullifies EITF Issue No. 94-3, "Liability Recognition for Certain Employee
Termination Benefits and Other Costs to Exit an Activity". The provisions of
Statement 146 were effective for exit or disposal activities initiated after
December 31, 2002, with early application encouraged. The adoption of this
standard did not have a significant impact on our financial position, earnings
or cash flows.
On December 31, 2002, the FASB issued Statement No. 148, "Accounting for
Stock-Based Compensation-Transition and Disclosure", which amends FASB Statement
No. 123, "Accounting for Stock-Based Compensation". This Statement amends FASB
F-12
Statement No. 123, "Accounting for Stock-Based Compensation", to provide
alternative methods of transition for a voluntary change to the fair value
method of accounting for stock-based employee compensation. In addition,
Statement 148 amends the disclosure requirements of Statement 123 to require
prominent disclosures in both annual and interim financial statements. We will
continue to recognize stock-based compensation under SFAS 123, and in accordance
with FASB Statement No. 148, we will include required disclosures for interim
reporting purposes.
In April 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133 on
Derivative Instruments and Hedging Activities." This Statement amends and
clarifies accounting for derivative instruments, including certain derivative
instruments embedded in other contracts, and for hedging activities under
Statement 133. This Statement is effective for contracts entered into or
modified after June 30, 2003 and for hedging relationships designated after
June 30, 2003. The guidance should be should be applied prospectively. The
adoption of this statement did not have any effect on our financial position
and results of operations.
In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of both Liabilities and Equity."
This Statement establishes standards for how an issuer classifies and measures
certain financial instruments with characteristics of both liabilities and
equity. It requires that an issuer classify a financial instrument that is
within its scope as a liability (or an asset in some circumstances). Among
other things, the Statement does not affect the classification or measurement
of convertible bonds, puttable stock, or other outstanding shares that are
conditionally redeemable. This Statement is effective for financial instruments
entered into or modified after May 31, 2003, and otherwise will be effective as
of December 28, 2003, except for mandatorily redeemable financial instruments.
The statement is to be implemented by reporting the cumulative effect of a
change in an accounting principle for financial instruments created before the
issuance date of the Statement and still existing at the beginning of the
interim period of adoption. The Company currently does not have any financial
instruments that are within the scope of this Statement.
In November 2002, the FASB issued FASB Interpretation 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including Indirect
Guarantees of Indebtedness to Others, an interpretation of FASB Statements No.
5, 57 and 107 and a rescission of FASB Interpretation No. 34", which enhances
the disclosures to be made by a guarantor in its interim and annual financial
statements about its obligations under guarantees issued. It clarifies that a
guarantor is required to recognize, at the inception of a guarantee, a liability
for the fair value of the obligation undertaken in issuing the guarantee. The
initial recognition and measurement provisions of this Interpretation are
applicable on a prospective basis to guarantees issued or modified after
December 31, 2002, irrespective of the guarantor's fiscal year-end. The
disclosure requirements in this Interpretation are effective for financial
statements of interim or annual periods ending after December 15, 2002. The
adoption of this interpretation had no impact on our financial position and
results of operations.
In December 2003, the FASB issued FASB Interpretation No. 46 (revised
December 2003), "Consolidation of Variable Interest Entities", which addresses
how a business enterprise should evaluate whether it has a controlling financial
interest in an entity through means other than voting rights and accordingly
should consolidate the entity. FIN 46R replaces FASB Interpretation No. 46,
"Consolidation of Variable Interest Entities", which was issued in January 2003.
The Company will be required to apply FIN 46R to variable interests in VIEs
created after December 31, 2003. For variable interests in VIEs created before
F-13
January 1, 2004, the Interpretation will be applied beginning on January 1,
2005. For any VIEs that must be consolidated under FIN 46R that were created
before January 1, 2004, the assets, liabilities and noncontrolling interests
of the VIE initially would be measured at their carrying amounts with any
difference between the net amount added to the balance sheet and any previously
recognized interest being recognized as the cumulative effect of an accounting
change. If determining the carrying amounts is not practicable, fair value at
the date FIN 46R first applies may be used to measure the assets, liabilities
and noncontrolling interest of the VIE. We have determined that the adoption of
FIN46R will not have any impact on our financial position and results of
operations.
Supplemental Statements of Cash Flow Information
The Company paid no interest charges in fiscal 2001, 2002 and 2003. During
fiscal 2001, 2002 and 2003 the Company paid $1,228,000 and $5,160,000 and
$4,071,000 in income taxes, respectively. The Company also generated an income
tax benefit of $2,933,000 from stock option exercises in fiscal 2003.
Prior Years' Reclassification
Certain items previously reported in specific captions in the accompanying
financial statements and notes have been reclassified to conform with the
current year's classification.
NOTE 2. RECEIVABLES
December 28, December 27,
2002 2003
------------ ------------
Construction allowances $ 468,000 $ 1,850,000
Third party credit card 1,837,000 2,368,000
Other 372,000 396,000
------------ ------------
$ 2,677,000 $ 4,614,000
============ ============
F-14
NOTE 3. EQUIPMENT AND LEASEHOLD IMPROVEMENTS
December 28, December 27,
2002 2003
------------ ------------
Leasehold improvements $ 21,803,000 $ 24,020,000
Furniture, fixtures, and equipment 29,463,000 36,644,000
------------ ------------
51,266,000 60,664,000
Less: accumulated depreciation
and amortization (32,713,000) (35,654,000)
------------ ------------
$ 18,533,000 $ 25,010,000
============ ============
Store operating and general and administrative expenses include
depreciation and amortization of $4,973,000, $4,963,000 and $5,570,000 in
fiscal years 2001, 2002 and 2003, respectively.
NOTE 4. ACCRUED LIABILITIES
December 28, December 27,
2002 2003
------------ ------------
Operating expenses $ 2,092,000 $ 2,631,000
Taxes, including income taxes 2,619,000 2,426,000
Group insurance 841,000 696,000
Sales return reserve 746,000 812,000
Leasehold additions 299,000 379,000
Other customer deposits and credits 2,710,000 3,131,000
------------ ------------
$ 9,307,000 $ 10,075,000
============ ============
Leasehold additions generally represent a liability to general contractors
for a final 10% payable on construction contracts for store construction or
renovations.
NOTE 5. BANK DEBT
During November 2002, the Company reached an agreement with its bank to
extend the maturity of the Amended Revolving Credit Facility until November 30,
2005. Pursuant to the newly Amended Revolving Credit Facility, $15,000,000 is
available until expiration at November 30, 2005. The amounts outstanding
thereunder bear interest at a maximum per annum rate equal to the bank's prime
rate. The agreement contains selected financial and other covenants. Effective
upon the occurrence of an Event of Default under the Revolving Credit Facility,
the Company grants to the bank a security interest in the Company's inventory
and certain receivables. The Company has at all times been in compliance with
all loan covenants.
There have been no borrowings against the line of credit during fiscal
2002 and 2003. There were outstanding letters of credit of $487,000 and $2.1
million pursuant to the Revolving Credit Facility at December 28, 2002 and
December 27, 2003, respectively.
F-15
NOTE 6. INDEBTEDNESS TO/FROM RELATED PARTIES
As of December 28, 2002, the Company had notes receivable totaling $321,000
from one current executive officer and one former executive officer of the
Company. The receivables, which were due on demand, were evidenced by secured
promissory notes, which bore interest at rates of 6% and 9% per annum. These
notes were repaid in July 2003.
NOTE 7. OTHER LIABILITIES
Other liabilities primarily consist of accruals of future rent escalations.
NOTE 8. COMMITMENTS AND CONTINGENCIES
Leases
At December 27, 2003, the Company was obligated under operating leases for
various store locations expiring at various times through 2016. The terms of the
leases generally provide for the payment of minimum annual rentals, contingent
rentals based on a percentage of sales in excess of a stipulated amount, and a
portion of real estate taxes, insurance and common area maintenance.
Store rental expense related to these leases, included in cost of sales,
consisted of the following:
52 Weeks Ended
--------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
Minimal rentals $ 17,141,000 $ 18,167,000 $ 19,883,000
Contingent rentals 7,106,000 7,555,000 8,258,000
------------ ------------ ------------
$ 24,247,000 $ 25,722,000 $ 28,141,000
============ ============ ============
Future minimum payments under non-cancelable operating leases consisted of
the following at December 27, 2003:
Fiscal Year
2004 $ 20,850,000
2005 18,688,000
2006 16,363,000
2007 15,075,000
2008 14,050,000
Thereafter 48,079,000
-------------
Total future minimum lease payments $ 133,105,100
=============
F-16
Contingencies
The Company is exposed to a number of asserted and unasserted potential
claims. Management does not believe it is reasonably possible that resolution
of these matters will result in a material loss.
NOTE 9. INCOME TAXES
The provision for income taxes includes:
52 Weeks Ended
------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
Current: ------------ ------------ ------------
Federal $ 1,726,000 $ 4,841,000 $ 5,105,000
State 54,000 1,023,000 1,067,000
------------ ------------ ------------
1,780,000 5,864,000 6,172,000
------------ ------------ ------------
Deferred:
Federal 107,000 (205,000) 1,110,000
State 8,000 (27,000) (193,000)
------------ ------------ ------------
115,000 (232,000) 917,000
------------ ------------ ------------
Provision for income taxes $ 1,895,000 $ 5,632,000 $ 7,089,000
============ ============ ============
The Company's effective tax rate, as a percent of income before income
taxes differs from the statutory federal tax rates as follows:
52 Weeks Ended
------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
Effective federal tax rate 34.0% 34.3% 34.5%
State and local income taxes,
net of federal tax benefit 2.5% 4.5% 4.7%
Other net, primarily tax free -- (0.2%) (0.2%)
------------ ------------ ------------
Provision for income taxes 36.5% 38.6% 39.0%
============ ============ ============
F-17
The major components of the Company's net deferred tax assets (liabilities)
at December 28, 2002 and December 27, 2003 are as follows:
December 28, December 27,
2002 2003
------------ ------------
State tax net operating loss carryforwards $ 91,000 $ 89,000
Deferred rent 526,000 543,000
Group insurance 319,000 275,000
Sales return reserve 283,000 321,000
Inventory 214,000 356,000
Other (principally depreciation expense) (267,000) (1,335,000)
------------ ------------
$ 1,166,000 $ 249,000
============ ============
NOTE 10. INCENTIVE STOCK OPTION PLAN
On July 22, 2003, the Company adopted the 2003 Stock Option Plan. The plan
is administered by the Compensation and Plan Administration Committee of the
Company's Board of Directors. Under the option plan the Company reserved 900,000
shares of the Company's authorized common stock for issuance to officers and key
employees of the Company.
On October 4, 2000, the Company adopted the 2000 Stock Option Plan. The
plan is administered by the Compensation and Plan Administration Committee of
the Company's Board of Directors. Under the option plan the Company reserved
550,000 shares of the Company's authorized common stock for issuance to officers
and key employees of the Company.
On December 16, 1994, the Company adopted the 1994 Stock Option Plan. Under
the option plan the Company reserved 600,000 shares of the Company's authorized
common stock for issuance to officers and key employees of the Company.
Options granted under the plans have a ten-year term and may be either
incentive stock options or non-qualified stock options. The options are granted
at an exercise price equal to the fair market value on the date of grant and
generally vest over a four year period. The granted options generally become
exercisable at the maximum rate of 25% per annum, to the extent the Company's
earning plan, as approved by the Compensation and Plan Administration Committee,
is achieved. The price is payable in cash at the time of the exercise or, at
the discretion of the Administrators, through the delivery of shares of Common
Stock or the Company's withholding of shares otherwise deliverable to the
employee, or a combination thereof.
F-18
The following table summarizes all stock option transactions for the three
52 week periods ended December 27, 2003:
Weighted Average Exercise
Shares Prices
---------------- --------
Shares under option as of December 30, 2000 900,000 $2.84
Options granted in 2001 228,000 3.20
Options canceled in 2001 (88,906) 2.59
----------------
Shares under option as of December 29, 2001 1,039,094 2.94
Options granted in 2002 186,000 6.81
Options exercised in 2002 (8,812) 2.59
Options canceled in 2002 (76,032) 2.59
----------------
Shares under option as of December 28, 2002 1,140,250 3.60
Options granted in 2003 815,000 18.66
Options exercised in 2003 (581,000) 3.14
Options canceled in 2003 (26,250) 4.95
----------------
Shares under option as of December 27, 2003 1,348,000 12.69
================
Significant option groups outstanding at December 27, 2003 and related
weighted average price and life information follows:
Options Options Exercise Remaining
Grant Date Outstanding Exercisable Price Life (Years)
---------- ----------- ----------- -------- ------------
7/22/03 790,000 -- $18.97 9
5/23/03 25,000 6,250 8.74 9
5/13/02 18,750 6,250 11.21 8
4/16/02 91,000 68,250 7.04 8
3/11/02 26,250 8,750 4.95 8
10/2/01 176,000 119,000 3.20 8
10/4/00 171,000 96,000 2.59 7
10/13/95 50,000 50,000 3.25 2
F-19
The Company accounts for stock options in accordance with APB Opinion No.
25, "Accounting for Stock Issued to Employees" under which no compensation cost
has been recognized for stock option awards granted at fair market value. Had
compensation expense been determined based on the fair value at the grant dates
for awards under the plans, consistent with the method of SFAS No. 123,
"Accounting for Stock Based Compensation" the Company's net earnings, basic EPS
and diluted EPS would have been reduced to the pro forma amounts listed below:
52 Weeks Ended
------------------------------------------
December 29, December 28, December 27,
2001 2002 2003
------------ ------------ ------------
Net income -- as reported $ 3,298,000 $ 8,941,000 $ 11,089,000
-- pro-forma $ 3,275,000 $ 7,857,000 $ 10,377,000
Basic EPS -- as reported $ 0.36 $ 0.98 $ 1.17
-- pro-forma $ 0.36 $ 0.86 $ 1.09
Diluted EPS -- as reported $ 0.36 $ 0.93 $ 1.13
-- pro-forma $ 0.35 $ 0.82 $ 1.06
The weighted average fair value of options granted during the 52 week
periods ended December 29, 2001, December 28, 2002, December 27, 2003 were
$3.20, $6.81, and $18.66, respectively. The fair value of each option grant was
estimated on the date of the grant using the Black-Scholes option pricing
method with the following weighted average assumptions:
2001 2002 2003
Grants Grants Grants
------ ------ ------
Expected dividend rate $ 0.00 $ 0.00 $ 0.00
Expected volatility 140.9% 70.3% 98.9%
Risk free interest rate 2.6% 3.0% 3.0%
Expected lives (years) 5.0 5.0 5.0
F-20
NOTE 11. QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
(In thousands, except per share data)
First Second Third Fourth
Quarter Quarter Quarter Quarter
------- ------- ------- -------
52 weeks ended December 28, 2002
Net sales $47,887 $51,557 $42,166 $58,705
Gross profit 19,623 21,894 16,847 25,461
Income before income tax provision 2,923 4,662 162 6,826
Income tax provision 1,067 1,702 59 2,804
------- ------- ------- -------
Net income $1,856 $2,960 $103 $4,022
======= ======= ======= =======
Basic and diluted earnings per share:
Basic earnings per share: $0.20 $0.33 $0.01 $0.44
======= ======= ======= =======
Diluted earnings per share: $0.20 $0.31 $0.01 $0.42
======= ======= ======= =======
52 weeks ended December 27, 2003
Net sales $48,098 $56,194 $47,343 $64,621
Gross profit 20,037 24,914 20,222 30,352
Income before income tax provision 2,657 5,735 998 8,788
Income tax provision 1,016 2,194 384 3,495
------- ------- ------- -------
Net income $1,641 $3,541 $614 $5,293
======= ======= ======= =======
Basic and diluted earnings per share:
Basic earnings per share: $0.18 $0.39 $0.06 $0.53
======= ======= ======= =======
Diluted earnings per share: $0.17 $0.37 $0.06 $0.51
======= ======= ======= =======
F-21
Cache, Inc and Subsidiaries
Valuation and Qualifying Accounts
Additions
------------------------
Balance at Charge to Balance at
Beg. Of Costs and Other Deductions End of
Sales Return Reserve Period Expenses Accounts $ Period
- -------------------- ---------- --------- -------- ---------- ----------
52 Weeks Ended
December 29, 2001 $555,000 --- --- --- $555,000
52 Weeks Ended
December 28, 2002 $555,000 $191,000 --- --- $746,000
52 Weeks Ended
December 27, 2003 $746,000 $66,000 --- --- $812,000
F-22
EXHIBIT 10.1 LEASE BETWEEN THE COMPANY AND NEW 1440 BROADWAY PARTNERS, LLC
LEASE
=====
NEW 1440 BROADWAY PARTNERS, LLC,
Landlord
TO
CACHE INC.,
Tenant
Premises:
A Portion of the Fifth (5th) Floor
at 1440 Broadway,
New York, New York
--------------------
TABLE OF CONTENTS
-----------------
CAPTION PAGE
------- ----
ARTICLE 1 Demise, Premises, Term, Rents .................................. 1
ARTICLE 2 Use ............................................................ 3
ARTICLE 3 Failure To Give Possession ..................................... 5
ARTICLE 4 Preparation of the Demised Premises ............................ 5
ARTICLE 5 Adjustments Of Rent ............................................ 7
ARTICLE 6 Security Deposit ............................................... 15
ARTICLE 7 Subordination, Notice To Lessors And Mortgagees ................ 18
ARTICLE 8 Quiet Enjoyment ................................................ 21
ARTICLE 9 Assignment And Subletting ...................................... 21
ARTICLE 10 Compliance With Laws And Requirements Of Public Authorities ... 33
ARTICLE 11 Insurance ..................................................... 36
ARTICLE 12 Rules And Regulations ......................................... 40
ARTICLE 13 Tenant's Changes .............................................. 40
ARTICLE 14 Tenant's Property ............................................. 45
ARTICLE 15 Repairs And Maintenance ....................................... 47
ARTICLE 16 Electricity ................................................... 48
ARTICLE 17 Heat, Ventilating And Air-Conditioning ........................ 52
ARTICLE 18 Landlord's Other Services ..................................... 55
ARTICLE 19 Access, Changes In Building Facilities, Name .................. 59
ARTICLE 20 Notice Of Accidents ........................................... 62
ARTICLE 21 Non-Liability And Indemnification ............................. 62
ARTICLE 22 Destruction Or Damage ......................................... 63
ARTICLE 23 Eminent Domain ................................................ 66
i
ARTICLE 24 Surrender; Holdover ........................................... 67
ARTICLE 25 Conditions Of Limitation ...................................... 68
ARTICLE 26 Re-Entry By Landlord .......................................... 71
ARTICLE 27 Damages ....................................................... 71
ARTICLE 28 Waiver ........................................................ 73
ARTICLE 29 No Other Waivers Or Modifications ............................. 74
ARTICLE 31 Broker ........................................................ 77
ARTICLE 32 Notices ....................................................... 77
ARTICLE 33 Estoppel Certificate .......................................... 78
ARTICLE 34 Arbitration ................................................... 79
ARTICLE 35 No Other Representations, Construction, Governing Law, Consents 79
ARTICLE 36 Parties Bound ................................................. 81
ARTICLE 37 Certain Definitions And Construction .......................... 81
ARTICLE 38 Adjacent Excavation And Construction; Shoring; Vaults ......... 82
ARTICLE 39 Storage Space ................................................. 82
TESTOMINIUM AND SIGNATURES ......................................... 85
ACKNOWLEDGEMENTS ................................................... 86
EXHIBIT A DESCRIPTION .............................................. 87
EXHIBIT B FLOOR PLAN ............................................... 88
EXHIBIT C PRELIMINARY PLAN ......................................... 89
EXHIBIT D RULES AND REGULATIONS .................................... 93
EXHIBIT E DEFINITIONS .............................................. 96
EXHIBIT F CLEANING SPECIFICATIONS .................................. 99
EXHIBIT G STORAGE SPACE FLOOR PLAN .................................101
EXHIBIT H HVAC SPECIFICATIONS ......................................102
_________________________
This Index is included only as a matter of convenience of reference and
shall not be deemed or construed in any way to define or limit the scope of
the following lease or the intent of any provision thereof.
ii
LEASE
-----
LEASE dated as of July 28, 2003, between NEW 1440 BROADWAY PARTNERS LLC
("Landlord"), a Delaware limited liability company, having an office c/o Max
Capital Management Corp., 230 Park Avenue, New York, New York 10169, and CACHE
INC. ("Tenant"), a Florida corporation having an office at 1460 Broadway, New
York, New York 10036.
WITNESSETH:
ARTICLE 1
Demise, Premises, Term, Rents
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 1440
Broadway, in the Borough of Manhattan, City, County and State of New York
(hereinafter referred to as the "Building"), on the parcel of land more
particularly described in Exhibit A (hereinafter referred to as the "Land"), for
the term hereinafter stated, for the rents hereinafter reserved and upon and
subject to the conditions (including limitations, restrictions and reservations)
and covenants hereinafter provided. Each party hereby expressly covenants and
agrees to observe and perform all of the conditions and covenants herein
contained on its part to be observed and performed.
1.02 The premises hereby leased to Tenant are a portion of the rentable
area of the fifth (5th) floor of the Building, as shown on the floor plan
annexed hereto as Exhibit B. Said premises together with all fixtures and
equipment which at the commencement or during the Term (as hereinafter defined),
are attached thereto (except items not deemed to be included therein and
removable by Tenant as provided in Article 14) constitute and are hereinafter
referred to as the "Demised Premises."
1.03 The term of this lease (the "term" or "Term") for which the Demised
Premises are hereby leased, shall commence on the date (the "Commencement Date")
which shall be the earlier of (a) the date on which Tenant, or any person or
entity claiming by, through or under Tenant, first occupies any portion of the
Demised Premises for the transaction of business, and (b) the Substantial
Completion Date (as hereinafter defined), and shall end at 5:00 p.m. on the last
day of the calendar month in which occurs the day next preceding the tenth
(10th) anniversary of the Rent Commencement Date (as hereinafter defined)
(which ending date is hereinafter referred to as the "Expiration Date"), or
shall end on such earlier date upon which said term may expire or be cancelled
or terminated pursuant to any of the conditions or covenants of this lease or
pursuant to law. Landlord agrees to use commercially reasonable efforts to
cause the Commencement Date to occur by September 15, 2003. For purposes of
this Section, "commercially reasonable efforts" shall mean an obligation to use
reasonable commercial efforts and shall not be interpreted to (x) require
Landlord to perform, or cause the performance of, Landlord's Work on an overtime
basis or (y) engage or hire an increased number of contractors or other workers
than the number of contractors or other workers that Landlord would normally
engage or hire to perform Landlord's Work or (z) incur premium charges to
accelerate deliveries of equipment or to accelerate the obtaining of any
required permits or related approvals. Notwithstanding the foregoing, Landlord
agrees to notify Tenant if Landlord cannot cause the Commencement Date to occur
by September 15, 2003 unless it engages or hires an increased number of
contractors as set forth in item (y) above or incurs premium charges as set
forth in item (z) above and, if Tenant agrees to pay the aforesaid costs on
behalf of Landlord, then Landlord agrees to so engage or hire an increased
number of contractors and/or incur such premium charges. Promptly following
the Commencement Date, the parties hereto (hereinafter sometimes referred to as
the "parties") shall enter into a recordable supplementary agreement fixing the
Commencement Date, the Substantial Completion Date and the Expiration Date, in
form reasonably satisfactory to both parties, but either party's failure to
execute or deliver such agreement shall in no way affect such dates. If the
parties cannot agree on such dates, such dates shall be determined by
arbitration in the manner provided in Article 34.
1.04 The "rents" reserved under this lease, for the term thereof, shall
be and consist of:
(a) fixed rent" of:
(i) $550,000.00 per year ($45,833.33 per month) during the
period (the "First Rent Period") commencing on the Rent Commencement Date and
ending on the day next preceding the fifth (5th) anniversary of the Rent
Commencement Date, both dates inclusive; and
(ii) $590,000.00 per year ($49,166.67 per month) during the
period (the "Second Rent Period") commencing on the date next succeeding the
last day of the First Rent Period and continuing thereafter through the
remainder of the initial term of this lease,
all of which Tenant covenants and agrees to pay in equal monthly installments
in advance on the first day of each and every calendar month during the term
of this lease, (except that Tenant shall pay, upon the execution and delivery
of this lease by Tenant, the sum of $45,833.33, to be applied against the first
monthly installment(s) of fixed rent becoming due under this lease; and
(b) "additional rent" consisting of all such other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for default
in payment of which Landlord shall have the same remedies as for a default in
payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
and at such place, as Landlord may designate by notice to Tenant, in lawful
money of the United States of America.
2
1.05 Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable, without demand
therefor and without any abatement, deduction, setoff or claim whatsoever except
as expressly provided in this lease.
1.06 If the Rent Commencement Date occurs on a day other than the first
day of a calendar month, the fixed rent for such calendar month shall be
prorated.
1.07 Tenant acknowledges that it has no rights to any development rights,
"air rights" or comparable rights appurtenant to the Land and Building, and
consents, without further consideration, to any utilization of such rights by
Landlord and agrees to promptly execute and deliver any instruments which may
be requested by Landlord, including instruments merging zoning lots, evidencing
such acknowledgment and consent. The provisions of this Section l.07 shall be
deemed to be and shall be construed as an express waiver by Tenant of any
interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Land and Building.
1.08 Each and every covenant contained in this Article shall be deemed
separate and independent, and not dependent on any other term of this lease for
the use and occupancy of the Demised Premises by Tenant, and the performance of
any such term shall not be considered to be for rent or other payment for use
of the Demised Premises. It is understood that the consideration for the
covenants in this Article is the making of this lease, and the damages for
failure to perform same shall be in addition to and separate and independent of
the damages accruing by reason of default in observing any other term of this
lease.
1.09 For purposes of this lease, the term "Rent Commencement Date" shall
mean the date which is six (6) months after the Commencement Date, it being
agreed and understood that Tenant shall have no obligation to pay any fixed rent
during the period from the Commencement Date through the date next preceding
the Rent Commencement Date.
ARTICLE 2
Use
2.01 (a) Tenant shall use and occupy the Demised Premises for executive,
general and administrative offices, and a portion of the Demised Premises (not
to exceed twenty-five (25%) percent thereof) may be used as a showroom in
connection with Tenant's business, and for no other purpose.
(b) Notwithstanding anything to the contrary contained above or
elsewhere in this lease, but only to the extent permitted by the Certificate of
Occupancy for the Building and applicable laws and/or requirements of public
authorities and requirements of insurance bodies, portions of the Demised
Premises may be used for the following: (i) installation and operation of one
or more pantry areas for reheating of food but not for cooking, including
microwave oven, dwyer unit, one or more refrigerators and other similar
equipment and machines for the preparation and storage of food and beverages
for Tenant's officers and directors, employees, staff and business visitors;
(ii) sale in the Demised Premises for Tenant's officers and directors,
employees, staff and business visitors, by vending machines of any item the
sale of which is not prohibited by law, whether by Tenant or third parties;
(iii) use of an area of the Demised Premises as a lunchroom for consumption of
3
food and beverages by Tenant's officers and directors, employees, staff and
business visitors; (iv) installation and operation in the Demised Premises of
electronic data, computer and word processing equipment and similar business
machines and printing and other reproducing equipment; and (v) installation
and operation of communication equipment (such as telecopiers, telex and the
like).
(c) Notwithstanding anything in this lease to the contrary, Tenant
covenants and agrees that during the term it will not use the Demised Premises
or any portion thereof, or permit the Demised Premises or any portion thereof
to be used, (i) for retail banking, trust company or safe deposit business;
(ii) as a retail commercial or savings bank, a trust company, a savings and loan
association, a loan company, or a credit union; (iii) for the sale of travelers
checks, money orders and/or foreign exchange; (iv) as a mailing address or
telephone answering service; (v) by the United States Government, the City or
State of New York, any foreign government, an autonomous governmental
corporation, a trade mission, the United Nations or any agency or department of
any of the foregoing, or any other person or entity having or who is entitled
to, directly or indirectly, sovereign or diplomatic immunity or who is not
subject to service of process in New York State or to the jurisdiction of both
the State and Federal Courts located in New York State; (vi) as an employment
agency, search firm or similar enterprise; (vii) for classrooms or as a school,
teaching center (other than for employee training programs), learning center,
studying center or vocational training center; (viii) as a diagnostic medical
center and/or for the practice of medicine; or (ix) any use (other than the
uses expressly permitted in subsections 2.01(a) and (b) above) which is
prohibited under an existing lease for space in the Building, provided Tenant
has been given notice of such prohibition, which notice may be given prior to,
or after, the date on which such prohibited use is first conducted in the
Demised Premises.
2.02 If any governmental license or permit, other than a Certificate of
Occupancy for the mere occupancy of the Demised Premises for the purposes set
forth in Section 2.01(a), shall be required for the proper and lawful conduct
of Tenant's business in the Demised Premises, or any part thereof, Tenant, at
its expense, shall duly procure and thereafter maintain such license or permit
and submit the same for inspection by Landlord. Tenant shall at all times
comply with the terms and conditions of each such license or permit.
2.03 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 violation of the Certificate of Occupancy for
the Demised Premises or for the Building or in violation of any laws and/or
requirements of public authorities, any requirements of insurance bodies, or
any superior mortgage or superior lease, provided, in the case of a superior
mortgage or superior lease, Tenant has been given notice of the applicable
prohibition or restriction contained therein, which notice may be given prior
to, or after, the date on which the prohibited or restricted use or occupancy
is first conducted in the Demised Premises. Landlord agrees that the mere use
(as opposed to the manner of use) of the Demised Premises for the purposes
expressly permitted under subsection 2.01(a) above shall not violate any of the
foregoing.
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ARTICLE 3
Failure To Give Possession
3.01 If the Demised Premises or any additional space to be included
within the Demised Premises shall not be available for occupancy by Tenant on
the specific date hereinbefore designated for the commencement of the term of
this lease or for the inclusion of such space for any reason whatsoever, then
this lease shall not be affected thereby but, in such case, said specific date
shall be deemed to be postponed until the date when the Demised Premises or the
additional space, as the case may be, shall be available for occupancy by
Tenant, and Tenant shall not be entitled to possession of the Demised Premises
or the additional space until the same are available for occupancy by Tenant;
provided, however, Tenant shall have no claim against Landlord, and Landlord
shall have no liability to Tenant by reason of any such postponement of said
specific date, and the parties hereto further agree that any failure to have
the Demised Premises or such additional space available for occupancy by Tenant
on said specific date or on the Commencement Date shall in no way affect the
obligations of Tenant hereunder nor shall the same be construed in any way to
extend the term of this lease. This Section 3.01 shall be deemed to be an
express provision to the contrary of Section 223-a of the Real Property Law of
the State of New York and any other law of like import now or hereafter in
force.
ARTICLE 4
Preparation of the Demised Premises
4.01 Tenant has fully inspected the Demised Premises and is satisfied
with the condition thereof and except for Landlord's performance of "Landlord's
Work" as hereinafter defined, Tenant agrees to accept possession of the Demised
Premises in their "as is" condition.
4.02 (a) Landlord agrees that it shall, at its sole cost and expense
(except as may otherwise be expressly provided in subsection 4.02(d) below),
perform the following items of work, as "Landlord's Work", utilizing Landlord's
Building Standard materials, in accordance with the plan annexed hereto as
Exhibit C (hereinafter referred to as the "Preliminary Plan"). Landlord at its
expense, subject to the provisions of this Article 4 shall cause architectural
working drawings and specifications (hereinafter referred to as the "Work
Plans") to be prepared based upon the Preliminary Plan. Except as may otherwise
be expressly provided herein, the costs to perform Landlord's Work shall include
architect's fees, engineering fees, space planning fees, filing fees and expense
and other typical "soft costs".
(b) Landlord agrees to seek bids from three (3) reputable
independent contractors in connection with the performance of Landlord's Work
based upon the Work Plans. Landlord agrees to review the bids with Tenant and
the parties will jointly select the contractor who will perform Landlord's Work
based on the bids. If Landlord and Tenant cannot jointly agree on such
contractor within five (5) days of receipt of the last of the bids, Landlord
will accept the lowest bid among the three.
(c) Deleted prior to execution.
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(d) Tenant shall have the right to request that Landlord make
revisions to the Work Plans (hereinafter referred to as the "Revisions") by
delivering such Revisions to Landlord's architect with a copy delivered to
Landlord. To the extent any Revisions increase the cost of Landlord's
performance of Landlord's Work from the costs that Landlord would have incurred
over and above the Building standard improvements as depicted on the Preliminary
Plan (hereinafter referred to as "Landlord's Work Cost"), then such increase in
Landlord's Work Cost shall be at Tenant's sole cost and expense and subject to
Landlord's prior written approval, which shall not be unreasonably withheld or
delayed. All Revisions to the Work Plans shall be made by Landlord's architect
and shall be submitted to Tenant for its approval, which submission may be by
hand delivery. In the event Tenant fails to respond to the submission within
five (5) business days of receipt thereof, Tenant shall be deemed to have
disapproved the Revisions and Landlord shall have no obligation with respect
thereto. In the event the cost of the Revisions increases the cost of
Landlord's Work above Landlord's Work Cost (hereinafter referred to as the
"Increased Costs"), Tenant shall pay, as additional rent, within ten (10) days
after request by Landlord (which request shall include a breakdown of such
Increased Costs and back-up information with respect thereto) such Increased
Costs. Tenant acknowledges that Landlord will not perform Landlord's Work until
Landlord receives payment of such Increased Costs. Additionally, in the event
(i) any Revisions or Tenant's failure to pay when due the Increased Cost (or
result in a delay by reason of Landlord's election not to perform Landlord's
Work until such amounts are paid when due) or (ii) Tenant's failure to make the
selections set forth in Section 4.02(a) when required, delay the substantial
completion of Landlord's Work, Landlord's Work shall be deemed substantially
complete as of the date it would otherwise have been completed but for such
delay.
4.03 Any other installations, materials or work other than Landlord's
Work which may be undertaken by or for the account of Tenant to equip, decorate
or furnish the Demised Premises for Tenant's occupancy (hereinafter referred to
as "Tenant's Work") shall be performed by Tenant, at its sole cost and expense,
in accordance with all the terms, covenants and conditions of this lease,
including without limitation, Articles 13 and 14 hereof, as if such Tenant's
Work was a "Tenant's Change" as defined in Article 13.
4.04 Landlord's Work shall be deemed substantially complete
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment, or decoration remain to the performed, the noncompletion
of which does not materially interfere with Tenant's use of the Demised Premises
(hereinafter referred to as "Punch-List Items"). The date on which Landlord's
Work is substantially completed or deemed to have been substantially completed
is herein referred to as the "Substantial Completion Date". Landlord agrees to
commence the performance of the Punch-List Items within fifteen (15) days of
Tenant's request and diligently complete the same.
4.05 If and when Tenant shall take actual possession of the Demised
Premises to prepare the same for Tenant's occupancy or for the conduct of its
business, it shall be conclusively presumed that the same were in satisfactory
condition (except for latent defects) as of the date of such taking of
possession, unless within thirty (30) days after taking such possession Tenant
shall give Landlord notice specifying the respects in which the Demised Premises
were not in satisfactory condition. To the extent available and obtainable in
the normal and customary practice, Landlord will deliver and assign to Tenant
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any guarantees and warranties delivered by the contractors and suppliers
performing or supplying materials, as the case may be, in connection with
Landlord's Work, without any recourse against, or representation or warranty by,
Landlord.
4.06 In addition to Landlord's Work, Landlord shall cause the men's and
women's lavatories on the fifth (5th) floor of the Building to be ADA (as
defined in Section 10.04) compliant.
ARTICLE 5
Adjustments Of Rent
5.01 Tax Escalation. For the purpose of this lease:
(a) "Taxes" shall mean the real estate taxes and assessments and
special assessments imposed upon the Building and the Land including, without
limitation, any assessments for public improvement or benefit to the Building
or Land, or the locality in which the Land is situated, such as Business
Improvement District taxes and assessments. If at any time during the term of
this lease the methods of taxation prevailing at the commencement of the term
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 the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed (i) a tax,
assessment, levy, imposition or charge wholly or partially as capital levy or
otherwise on the rents received therefrom, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the Demised
Premises and imposed upon Landlord, or (iii) a license fee measured by the rents
payable by Tenant to Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof so measured or based, shall be
deemed to be included within the term "Taxes" for the purposes hereof. The
term "Taxes" shall not include any income, franchise, transfer, inheritance,
capital stock or other similar tax imposed on Landlord unless, due to a future
change in the method of taxation, an income, franchise, transfer, inheritance,
capital stock or other tax shall be levied against Landlord in substitution for
any tax or increase therein which would otherwise constitute "Taxes", as defined
in the first sentence of this subsection (a), in which event such income,
franchise, transfer, inheritance, capital stock or other tax shall be deemed to
be included in the term "Taxes" but any such income or similar tax shall be
computed as if the Building and the Land were the only property of Landlord. If
any assessment is paid by Landlord in installments, then only the installments
paid by Landlord in a given Tax Year shall be included in "Taxes" for such Tax
Year. If, by law, any assessment may be paid in installments but Landlord
chooses not to pay same in installments, then, for the purposes of determining
the Taxes for a given Tax Year: (i) such assessment shall be deemed to have been
payable in the maximum number of installments permitted by law, and (ii) there
shall be included in Taxes for each Tax Year the installments of such assessment
that would have been payable during such Tax Year had Landlord elected to pay
such assessment in the maximum number of installments, together with any
interest thereon that would payable during such Tax Year. "Taxes" shall also
include penalties and interest to the extent attributable to Tenant's failure
to timely and properly pay the Tax Payment (as hereinafter defined) as required
under this lease; but not penalties and interest attributable to any other
tenant's or Landlord's failure to timely and properly pay Taxes.
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(b) "Base Tax Year" shall mean the 2003/2004 Tax Year and
2004/2005 Tax Year;
(c) "Base Tax Rate" shall mean the average Taxes for the two (2)
Tax Years comprising the Base Tax Year, as finally determined;
(d) "Tax Year" shall mean the fiscal year for which Taxes are
levied by the governmental authority;
(e) "Tenant's Proportionate Share" shall mean 2.60%, which has
been computed on the basis of a fraction, the numerator of which is the agreed
rentable square foot area of the Demised Premises as set forth below, and the
denominator of which is the agreed rentable square foot area of the Building as
set forth below. The parties agree that the rentable square foot area of the
Demised Premises shall be deemed to be 20,000 square feet, and that the agreed
rentable square foot area of the Building shall be deemed to be 770,000 square
feet (hereinafter referred to as the "Building Area").
(f) "Tenant's Projected Share of Taxes" shall mean the Tax Payment
(as hereinafter defined), if any, payable by Tenant for the immediately prior
Tax Year divided by twelve (12) and payable monthly by Tenant to Landlord as
additional rent.
5.02 If the Taxes for any Tax Year shall be more than the Base Tax Rate,
Tenant shall pay, as additional rent for such Tax Year, an amount (the "Tax
Payment") equal to Tenant's Proportionate Share of the amount by which the Taxes
for such Tax Year are greater than the Base Tax Rate. The Tax Payment and the
Base Tax Rate shall be appropriately prorated, if necessary, to correspond with
that portion of a Tax Year occurring within the term of this lease. The Tax
Payment shall be payable by Tenant within fifteen (15) days after receipt of a
demand from Landlord therefor (such demand being hereinafter referred to as a
"Tax Statement"), which demand shall be accompanied by a copy of the tax bill
or notice of assessment for the Tax Year in respect of which a Tax Payment is
being demanded, together with Landlord's computation of the Tax Payment, but in
no event shall Tenant be obligated to make the Tax Payment more than forty-five
(45) days prior to the date on which the corresponding Taxes are due to the
taxing authority.
5.03 Notwithstanding the fact that the Tax Payment is measured by an
increase in Taxes, such increase is additional rent and shall be paid by Tenant
as provided herein regardless of the fact that Tenant may be exempt, in whole
or in part, from the payment of any taxes by reason of Tenant's diplomatic or
other tax exempt status or for any other reason whatsoever.
5.04 Only Landlord shall be eligible to contest the Taxes or the assessed
valuation of the Building or the Land, or to institute tax reduction or other
proceedings to reduce the Taxes or such assessed valuations, or to negotiate
for a reduction in the such assessed valuations prior to the issuance of a
notice of assessment or tax bill (all of the foregoing being collectively
referred to as the "Tax Reduction Actions"). Landlord agrees to review the
Taxes for each Tax Year occurring within the term of this lease and make a good
faith determination as to whether or not Landlord shall formally or informally
take any Tax Reduction Action. If Landlord takes any Tax Reduction Action,
then Tenant shall pay to Landlord, within fifteen (15) days after Landlord's
8
demand therefor, Tenant's Proportionate Share of the actual and out-of-pocket
costs and expenses (including attorneys' fees and disbursements) incurred or
paid by Landlord in taking the Tax Reduction Action (such costs and expenses
being herein referred to as the "Tax Reduction Expenses"). If Landlord receives
a refund of Taxes for any Tax Year in respect of which Tenant has made a Tax
Payment, Landlord shall return to Tenant Tenant's Proportionate Share of such
refund, less Tenant's Proportionate Share of the Tax Reduction Expenses
attributable to such refund, except to the extent Tenant has already paid to
Landlord Tenant's Proportionate Share of the Tax Reduction Expenses attributable
to such refund.
5.05 Commencing with the first Tax Year for which Landlord shall be
entitled to receive a Tax Payment, Tenant shall pay to Landlord, as additional
rent for the then Tax Year, and in addition to the Tax Payment for such Tax
Year, Tenant's Projected Share of Taxes. Upon each date that a Tax Payment or
an installment on account thereof shall be due from Tenant pursuant to the terms
of Section 5.02 hereof, Landlord shall apply the aggregate of the installments
of Tenant's Projected Share of Taxes then on account with Landlord against the
Tax Payment or installment thereof then due from Tenant. In the event that such
aggregate amount shall be insufficient to discharge such Tax Payment or
installment, Landlord shall so notify Tenant in the Tax Statement, and the
amount of Tenant's payment obligation with respect to such Tax Payment or
installment pursuant to Section 5.02 shall be equal to the amount of the
insufficiency. If, however, such aggregate amount shall be greater than the
Tax Payment or installment, and Tenant shall not then be in default under this
lease, then Landlord shall either (a) pay the amount of excess directly to
Tenant concurrently with the giving of the Tax Statement, or (b) permit Tenant
to credit the amount of such excess against the next payment of Tenant's
Projected Share of Taxes due hereunder.
5.06 (a) Anything in this Article 5 to the contrary notwithstanding, in
the event that the holder of any superior mortgage or the lessor of any superior
lease (as such terms are defined in Section 7.01 hereof) shall require advance
payments from Landlord on account of Taxes, then Tenant will pay Tenant's
Proportionate Share of any amounts on account of Taxes required to be paid or
deposited in advance by Landlord to or with the holder of the superior mortgage
or the lessor of the superior lease to the extent that such payments made by
Landlord exceed the Base Tax Rate. Any payments to be made by Tenant under this
Section 5.06(a) shall be made ten (10) days prior to the date Landlord is
required to make such payments to the holder of the superior mortgage or the
lessor of the superior lease, provided Landlord has given Tenant at least
fifteen (15) days prior notice of such requirement;
(b) Anything in Sections 5.01 through 5.06 to the contrary
notwithstanding, in no event whatsoever shall the fixed rent be reduced below
the fixed rent initially set forth in Section 1.04(a) hereof as same may be
increased by provisions of this lease other than Sections 5.01 through 5.06.
5.07 Expense Escalation. For purposes of this lease:
(a) "Operating Expenses" shall mean any or all expenses incurred
by Landlord in connection with the operation, maintenance and repair of the
Building, including all expenses incurred as a result of Landlord's compliance
with any of its obligations hereunder and such expenses shall include: (i)
salaries, wages, medical, surgical and general welfare benefits (including
9
group life insurance), pension payments and other fringe benefits of employees
of Landlord engaged in the operation and maintenance of the Building (the
salaries and other benefits aforesaid of such employees servicing the Building
shall be comparable to those of employees servicing buildings similar to the
Building, located in the Borough of Manhattan); (ii) payroll taxes, worker's
compensation, uniforms and dry cleaning for the employees referred to in
subdivision (i); (iii) the cost of all charges for steam, heat, ventilation, air
conditioning and water (including sewer rental) furnished to the public portions
of the Building and/or used in the operation of all of the service facilities
of the Building and the cost of all charges for electricity furnished to the
public and service areas of the Building and/or used in the operation of all of
the service facilities of the Building including any taxes on any of such
utilities; (iv) the cost of all charges for rent, casualty, war risk insurance
(if obtainable from the United States government) and of liability insurance for
the Building; (v) the cost of all building and cleaning supplies for the common
areas of the Building and charges for telephone for the Building; (vi) the cost
of all charges for management, security, cleaning and service contracts for the
Building; (vii) the cost of rentals of capital equipment designed to result in
savings or reductions in Operating Expenses which costs shall not exceed the
savings realized; (viii) the cost incurred , which are non-capital expenditures,
in connection with the maintenance and repair of the Building; and (ix)
expenditures for capital improvements (l) which under generally accepted
accounting principles as applied to real estate practice are expensed or
regarded as deferred expenses, or (2) which are required by any law enacted
after the date of this lease or any amendment enacted after the date of this
lease of any existing law, or (3) which are designed to result in a saving in
the amount of Operating Expenses, in any of such cases the cost thereof shall
be included in Operating Expenses for the Operational Year in which the costs
are incurred and subsequent Operational Years, amortized on a straight line
basis, over the useful life thereof as determined in accordance with generally
accepted accounting principles consistently applied (except that, with respect
to a capital improvement which is of the type specified in clause (3), such
cost shall be amortized over such period of time as Landlord reasonably
estimates such savings in Operating Expenses will equal Landlord's cost for such
capital improvement but in no event in excess of the amount of savings actually
realized in any Operational Year), with an interest factor in any of such cases
equal to two (2%) percent above the Prime Rate (as hereinafter defined) at the
time of Landlord's having incurred said expenditure. Landlord may use related
or affiliated entities to provide services (including management services) or
furnish materials for the Building provided that the rates or fees charged by
such entities are reasonably competitive with those charged by unrelated or
unaffiliated entities in the same area in the Borough of Manhattan as the
Building, for the same services or materials. Provision in this lease for an
expense to be Landlord's cost or expense (or sole cost or expense), or at
Landlord's cost or expense (or sole cost or expense) shall not affect the
inclusion thereof, to the extent provided above, in Operating Expenses.
Operating Expenses shall exclude or have deducted from them, as the case may be,
and as shall be appropriate:
1. leasing and brokerage commissions in connection with
leases of space in the Building;
2. salaries, fringe benefits and other compensation of
personnel above the grade of building manager;
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3. the cost of any electricity furnished to the Demised
Premises or any other space leased in the Building;
4. except as otherwise hereinabove provided, the cost of any
repair or replacement, alteration, addition or change which is a capital
expenditure under generally accepted accounting principles consistently applied;
5. the cost of services provided to Tenant or any of the
other tenants of the Building, including overtime HVAC, for which Landlord is
directly compensated, or has the right to be directly compensated by Tenant or
any other tenant of the Building (except pursuant to provisions similar in
intent to Sections 5.07 through 5.11 hereof for the payment of a share of the
costs of operating the Building), which are not included in fixed rent;
6. the cost of repairs or replacements incurred by reason of
insured fire or other casualty, or condemnation;
7. advertising and promotional expenditures and any other
expense incurred in connection with the renting of space;
8. legal and other professional or consulting fees incurred
in disputes with tenants, and legal, arbitration and auditing fees other than
legal, arbitration and auditing fees reasonably incurred (a) in connection with
the maintenance and operation of the Building or (b) in connection with the
preparation of statements required pursuant to rental escalation provisions;
9. depreciation of the Building, equipment or other
improvements;
10. mortgage or other interest and/or debt service, and/or
financing and refinancing costs in connection with any loan, secured or
unsecured; ground rents or any other payments under any superior leases;
11. any initial construction work performed by, or at the
expense of, Landlord for tenants, and tenant alteration work or change work,
including any utilities, fees or services incurred in connection with the
performance of such work;
12. painting and decorating of areas to be occupied by tenants
or licensees; special services (i.e., beyond the normal repair, maintenance and
operating of the Building) provided without extra charge, beyond fixed rent, to
some but not all tenants in the Building;
13. Taxes;
14. lease takeover costs and related expenses;
15. any wages, salaries, fringe benefits and other
compensation of Landlord's employees (except as set forth in Section 5.07(a)(i)
and (ii) above) or any general and administrative overhead of Landlord;
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16. costs incurred with respect to a sale or purchase of all
or any portion of the Building or any interest therein or in connection with
the purchase or sale of any air or development rights;
17. any interest, fine, penalty or other late charges payable
by Landlord;
18. the cost of removing, encapsulating or otherwise abating
any asbestos or other hazardous materials in the Building except with respect
to any materials which are determined to be hazardous after the date of this
lease;
19. franchise, income, transfer, gains, inheritance, personal
property or other tax imposed on Landlord;
20. the cost of the acquisition or installation of any
sculpture, paintings or other objects of art in excess of amounts typically
spent for such items in comparable buildings in the vicinity of the Building;
21. the cost of performing work or furnishing services to or
for any tenant other than Tenant, at Landlord's expense, to the extent such
work or service is in excess of any work or service Landlord is obligated to
provide to Tenant or generally to other tenants in the Building at Landlord's
expense;
22. amounts that would otherwise be included as an "Operating
Expense" which are reimbursed to Landlord from insurance proceeds, provided,
however, to the extent an amount that is so reimbursed from insurance proceeds
is not reimbursed in the Operational Year in which the amount in question was
included in "Operating Expenses", then at Landlord's option (1) the Operating
Expenses and the Operating Expense Payment for the Operational Year in which
the reimbursed amount in question was included in "Operating Expenses", shall
be recalculated and the overpayment made by Tenant shall be credited against
rent, or (2) the reimbursed amount shall be deducted from the then Operational
Year's Operating Expenses, except that if Tenant would otherwise be entitled to
any reimbursed amount during the last year of the term of this lease, Landlord
shall refund such reimbursed amount to Tenant; and
23. costs incurred to remedy violations of laws and/or
requirements of public authorities that exist on the date of this lease or
which arise by reason of the failure of Landlord (or Landlord's predecessor) to
construct, maintain or operate the Building or any part thereof in compliance
with such laws and/or requirements of public authorities (excluding the costs
of permits and approvals to comply with laws and/or requirements of public
authorities in the ordinary course of the operation of the Building).
If during all or part of the Base Operational Year (as hereinafter
defined) or any other Operational Year, Landlord shall not furnish any
particular item(s) of work or service (which would otherwise constitute an
Operating Expense hereunder) to office portions of the Building due to the fact
that (i) such portions are not occupied or leased, (ii) such item of work or
service is not required or desired by the tenant of such portion, or (iii) such
tenant is itself obtaining and providing such item of work or service, then,
for the purposes of computing Operating Expenses, the amount for such item and
for such period shall be deemed to be increased by an amount equal to the
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additional costs and expenses which would reasonably have been incurred during
such period by Landlord if it had at its own expense furnished such item of
work or services to such portion of the Building or to such tenant.
(b) "Operational Year" shall mean each calendar year during the
Term hereof.
(c) "Base Operational Year" shall be calendar year 2004;
(d) "Operating Expense Base" shall mean Operating Expenses for
the Base Operational Year;
(e) "Tenant's Projected Share of Operating Expenses" shall mean
Tenant's Operating Expense Payment (as hereinafter defined), if any, for the
prior Operational Year divided by twelve (12) and payable monthly by Tenant to
Landlord as additional rent.
5.08 After the expiration of the Base Operational Year, Landlord shall
furnish Tenant a statement setting forth the aggregate amount of the Operating
Expenses for the Base Operational Year. After the expiration of each
Operational Year after the Base Operational Year, Landlord shall furnish Tenant
a statement setting forth the aggregate amount of the Operating Expenses for
such Operational Year. The statement furnished under this Section 5.08 is
hereinafter referred to as an "Operating Statement."
5.09 If the Operating Expenses for any Operational Year shall be more
than the Operating Expense Base, Tenant shall pay, as additional rent for such
Operational Year, an amount (the "Operating Expense Payment") equal to Tenant's
Proportionate Share of the amount by which the Operating Expenses for such
Operational Year are greater than the Operating Expense Base. The Operating
Expense Payment shall be prorated, if necessary, to correspond with that portion
of an Operational Year occurring within the Term of this lease. The Operating
Expense Payment shall be payable by Tenant within fifteen (15) days after
receipt of the Operating Statement.
5.10 Commencing with the first Operational Year after Landlord shall be
entitled to receive an Operating Expense Payment, Tenant shall pay to Landlord
as additional rent for the then Operational Year, Tenant's Projected Share of
Operating Expenses. If the Operating Statement furnished by Landlord to Tenant
at the end of then Operational Year shall indicate that Tenant's Projected Share
of Operating Expenses exceeded the Operating Expense Payment, then Landlord
shall either (a) pay the amount of excess directly to Tenant concurrently with
the notice or (b) permit Tenant to credit the amount of such excess against the
subsequent payment of the Tenant's Projected Share of Operating Expenses due
hereunder; if such Operating Statement furnished by Landlord to Tenant hereunder
shall indicate that the Operating Expense Payment exceeded Tenant's Projected
Share of Operating Expenses for the then Operational Year, Tenant shall pay the
amount of such excess to Landlord within fifteen (15) days after Landlord
furnishes such Operating Statement to Tenant.
5.11 Every Operating Statement given by Landlord pursuant to Section 5.08
shall be conclusive and binding upon Tenant unless (i) within 120 days after the
receipt of such Operating Statement Tenant shall notify Landlord that it
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disputes the correctness of the Operating Statement, specifying in reasonable
detail either the particular respects in which, or the basis upon which, the
Operating Statement is claimed to be incorrect, and (ii) if such dispute shall
not have been settled by agreement, the parties shall submit the dispute to
arbitration within ninety (90) days after Landlord's receipt of notice from
Tenant that Tenant disputes the correctness of such Operating Statement.
Landlord agrees, at no cost or expense to Landlord, to grant Tenant reasonable
access to those books and records of Landlord relevant to such dispute (other
than privileged materials) for the purpose of verifying Operating Expenses
incurred by Landlord in the Operational Year in question and to have and make
copies of any and all bills and vouchers relating to such dispute. Tenant
agrees that Tenant will not employ, in connection with any review or dispute
under this lease, any person who is to be compensated, in whole or in part, on
a contingency fee basis. In connection with any such review, audit or dispute,
Tenant and its representatives shall execute and deliver to Landlord a
confidentiality agreement, in form and substance reasonably satisfactory to
Landlord and Tenant, whereby such parties agree not to disclose to any third
party any of the information obtained in connection with such review or audit,
or the substance of any admissions or stipulations by any party in connection
therewith, or of any resulting reconciliation, compromise or settlement.
Pending the determination of such dispute by agreement or arbitration as
aforesaid, Tenant shall within fifteen (15) days after receipt of such Operating
Statement, pay additional rent, if due, in accordance with the Operating
Statement and such payment shall be without prejudice to Tenant's position. If
the dispute shall be determined in Tenant's favor, Landlord shall, within
fifteen (15) days after Tenant's demand therefor, pay Tenant the amount of
Tenant's overpayment of the Operating Expense Payment, if any, resulting from
compliance with the Operating Statement plus reasonable out-of-pocket costs
actually paid by Tenant to the person who conducted the audit of Landlord's
books and records on Tenant's behalf in connection with verifying the Operating
Expenses for the Operational Year in question, but, as to such audit expenses,
only if the actual overpayment by Tenant of the actual Operating Expense Payment
(as opposed to any Tenant's Projected Share of Operating Expenses) exceeds two
(2) times the Operating Expense Payment so finally determined for the
Operational Year in question.
5.12 Landlord's failure during the lease term to prepare and deliver any
of the demands, tax bills, notices of assessment, statements, other notices or
other bills set forth in this Article 5, or Landlord's failure to make a demand,
shall not in any way cause Landlord to forfeit or surrender its rights to
collect any of the foregoing items of additional rent which may have become due
during the term of this lease. Notwithstanding the foregoing, and except in the
case where the term of this lease ends as a result of a default under any of the
terms, covenants or conditions in this lease on Tenant's part to observe,
perform or comply with, Landlord shall be deemed to have waived its right to
claim any Tax Payment for any Tax Year occurring (in whole or in part) during
the term of this lease if Landlord shall fail to render a Tax Statement with
respect to any such Tax Years within three (3) years after the last day of the
applicable Tax Year in question, and Landlord shall be deemed to have waived
its right to claim any Operating Expense Payment for any Operational Year
occurring (in whole or in part) during the term of this lease if Landlord shall
fail to render an Operating Statement with respect to any such Operational Years
within three (3) years after the last day of the applicable Operational Year
in question.
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ARTICLE 6
Security Deposit
6.01 Upon execution and delivery of this lease by Tenant, Tenant shall
have deposited with Landlord the sum of $550,000.00 (the "Security Deposit
Amount") by Letter of Credit (as hereinafter defined) as security for the
faithful performance, observance and compliance with all of the terms, covenants
and conditions of this lease on Tenant's part to perform, observe or comply
with. In the event that Tenant defaults under any of the terms, covenants or
conditions in this lease on Tenant's part to observe, perform or comply with
(including, without limitation, the payment of any installment of fixed rent or
any amount of additional rent), and fails to cure such default after the giving
of any required notice and the expiration of any applicable cure period, then,
to the extent required for the payment of any fixed rent, additional rent, or
any other sums as to which Tenant is in default, or for any sum that Landlord
reasonably may expend or may be required to expend by reason of any such default
(including any damages or deficiency accrued before or after summary proceedings
or other re-entry by Landlord), (a) Landlord may notify the Issuing Bank (as
such term is defined in Section 6.03 hereof) and thereupon receive all or a
portion of the monies represented by the said Letter of Credit and use, apply,
or retain the whole or any part of such proceeds, or (b) in the event that
Landlord is holding a cash security pursuant to Section 6.02 below, Landlord may
use, apply, or retain the whole or any part of the cash security. In the event
that Landlord applies or retains any portion or all of such cash security or
the proceeds of such Letter of Credit or cash, or both, as the case may be, the
amount not so used, applied or retained shall continue to be treated as Tenant's
security deposit, and Tenant shall restore the amount so used, applied or
retained within seven (7) days after Landlord's demand therefor, so that, at all
times, the amount deposited shall be equal to the Security Deposit Amount,
subject to increase and reduction as hereinafter provided. In the event that
Tenant shall fully and faithfully comply with all of the material terms,
provisions, covenants and conditions of this lease, that portion, if any, of the
cash security or Letter of Credit, or both, as the case may be, not used,
applied or retained shall be returned to Tenant within thirty (30) days after
the Expiration Date and after delivery of possession of the entire Demised
Premises to Landlord, in accordance with, and subject to, the applicable
provisions of this lease.
6.02 To the extent that the security deposited under this Article is a
cash security deposit, Landlord agrees to deposit same into an interest bearing
account in a bank or savings and loan association to be selected, from time to
time, by Landlord in its sole discretion. Landlord agrees, further to hold said
security in such an account for the entire term of this lease, subject, however,
to the terms of Section 6.01 above with respect to the use, application or
retention of such security. To the extent permitted by law, Tenant agrees that
Landlord shall be entitled to receive and retain, as an administrative expense,
a sum equal to one (1%) percent per annum upon such security, and Landlord shall
have the right to withdraw such sum from time to time as Landlord shall
determine in is sole discretion. The balance of the interest earned on such
security shall, provided Tenant is not then in default under this lease, and to
the extent that same shall not be used, applied or retained pursuant to the
terms of Section 6.01 above, be paid to Tenant upon the request of Tenant, but
not more than once during any calendar year of the term of this lease. Unless
and until such interest shall be paid to Landlord and Tenant as herein provided,
the same shall be held as a part of the security deposited by Tenant, subject
to, and in accordance with, the terms of Section 6.01 above. Landlord shall not
be required to credit any security with the interest for any period during which
Landlord does not receive interest thereon.
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6.03 (a) The letter of credit (the "Letter of Credit") to be delivered
as security under this Article shall be satisfactory to Landlord in all
respects:
(i) shall be clean, irrevocable and unconditional;
(ii) shall be issued by and drawn upon a commercial bank
which is a member of the New York Clearing House Association, Chase, N.A.,
Citibank, N.A., Fleet Bank, N.A. or HSBC (hereinafter referred to as the
"Issuing Bank") and with offices for the purpose of drawing on the Letter of
Credit in the City of New York;
(iii) shall have a term of not less than one year, be in form
and content satisfactory to Landlord, be for the account of Landlord, be in the
amount of the Security Deposit Amount, shall permit partial drawings, and shall
provide that:
(A) The Issuing Bank shall pay to Landlord or its
duly authorized representative an amount up to the face amount of the Letter of
Credit upon presentation of only the Letter of Credit and a sight draft in the
amount to be drawn
(B) The Letter of Credit shall be deemed to be
automatically renewed, without amendment and without any final expiration date,
for consecutive periods of one year each, unless the Issuing Bank sends written
notice (hereinafter called the "Non-Renewal Notice") to Landlord by certified
or registered mail, return receipt requested, not less than thirty (30) days
next preceding the then expiration date of the Letter of Credit, that it elects
not to have such Letter of Credit renewed; and
(C) The Letter of Credit shall be transferable by the
beneficiary thereof; the Letter of Credit may be transferred as aforesaid from
time to time, by the then beneficiary under the Letter of Credit; to effectuate
a transfer under the Letter of Credit, the beneficiary must notify the Issuing
Bank in a writing signed by an authorized signatory of beneficiary, of the name
and address of the transferee and of the effective date of the transfer; and
upon the Issuing Bank's receipt of such writing, the Issuing Bank will issue an
amendment to the Letter Credit that changes the name and address of the
beneficiary hereof and shall deliver the original of such amendment to the new
beneficiary/transferee and a copy thereof to the prior beneficiary/transferor.
(b) Landlord, after its receipt of the Non-Renewal Notice, shall
have the right, exercisable by a sight draft only, to receive the moneys
represented by the Letter of Credit, which moneys shall be held by Landlord as
a cash deposit pursuant to the terms of this Article pending the replacement of
such Letter of Credit.
6.04 In the event of a sale or transfer of the Land or the Building, or
the then Landlord's interest in the Land or the Building, or a leasing by the
then Landlord of the Land or the Building or of Landlord's interest therein,
Landlord shall have the right to transfer or assign such cash security or Letter
of Credit, or both, as the case may be, to the vendee, transferee or lessee, and
Landlord shall notify Tenant, by certified mail, return receipt requested, of
such sale, transfer or lease, together with the name and address of such vendee,
transferee or lessee, and, in accordance with Section 7-105 of the New York
General Obligations Law, Landlord shall thereupon be released by Tenant from
all liability for the return of such cash security or Letter of Credit. In such
16
event, Tenant agrees to look solely to the new Landlord for the return of said
cash security or Letter of Credit. It is agreed that the provisions hereof
shall apply to every transfer or assignment made of said cash security or
Letter of Credit to a new Landlord. In connection with the foregoing, Tenant,
at no cost to Landlord, shall reasonably cooperate with Landlord and such
vendee, transferee or lessee in connection with the transfer or assignment of
such security or Letter of Credit, including, without limitation, executing and
delivering, within ten (10) days after demand therefor, any and all instruments,
certificates, agreements or other documents that Landlord, such vendee,
transferee or lessee, the bank with which such security is deposited or the
Issuing Bank may reasonably require.
6.05 Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber, such cash security or Letter of Credit, and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment, or attempted encumbrance.
6.06 In the event that at any time during the term of this lease
Landlord, in Landlord's reasonable opinion, believes that circumstances have
occurred indicating that the Issuing Bank may be incapable of, unable to, or
prohibited from honoring the then existing Letter of Credit (hereinafter
referred to as the "Existing L/C") in accordance with the terms thereof, then,
upon the happening of either of the foregoing, Landlord may send written notice
to Tenant (hereinafter referred to as the "Replacement Notice") requiring Tenant
within forty-five (45) days to replace the Existing L/C with a new letter of
credit (hereinafter referred to as the "Replacement L/C") from an Issuing Bank
meeting the qualifications described in Section 6.03. Upon receipt of a
Replacement L/C meeting the qualifications of Section 6.03, Landlord shall
forthwith return the Existing L/C to Tenant. In the event that (a) a
Replacement L/C meeting the qualifications of Section 6.03 is not received by
Landlord within the time specified or (b) Landlord reasonably believes an
emergency exists, then in either event, the Existing L/C may be presented for
payment by Landlord and the proceeds thereof shall be held by Landlord in
accordance with Sections 6.01 and 6.02 subject, however, to Tenant's right, at
any time thereafter prior to a Tenant's default hereunder, to replace such cash
security with a new letter of credit meeting the qualifications of Section 6.03.
6.07 (a) Notwithstanding anything set forth in this Article 6 to the
contrary, and provided that Tenant has not defaulted in the payment of fixed
rent and/or additional rent during the twelve (12) month period prior to each
respective Annual Reduction Date (as hereinafter defined) and provided further
that Tenant is not then in default in the observance or performance of Tenant's
obligations under this lease which default continues after any required notice
and the expiration of any applicable cure period and Landlord has not previously
applied any such security in accordance with the provisions of this Article 6
which has not been restored by Tenant, then, commencing on the first (1st)
anniversary of the Rent Commencement Date and on the following two (2)
anniversaries thereafter of the Rent Commencement Date (hereinafter collectively
referred to as the "Annual Reduction Dates" and individually as an "Annual
Reduction Date"), the security deposit (whether in the form of cash or the
Letter of Credit) shall be reduced, after ten (10) days' notice from Tenant to
Landlord given not sooner than ten (10) days prior to each Annual Reduction
Date (hereinafter referred to as a "Reduction Notice"), by the sum of
$137,500.00 on each Annual Reduction Date, but in no event shall the security
deposit be reduced below the amount of $137,500.00. No failure by Tenant to
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give Landlord a Reduction Notice prior to any Annual Reduction Date shall
operate to waive or discharge Landlord's obligation to so reduce the security
deposit, but Landlord shall have no obligation to reduce the security deposit
until twenty (20) days after Tenant shall give the Reduction Notice with respect
to such Annual Reduction Date.
(b) If Tenant has deposited the security deposit in cash, Landlord
shall refund to Tenant the amounts by which the security deposit is reduced
pursuant to this Section 6.07, on or after the applicable Annual Reduction Date
within ten (10) days after receipt of the Reduction Notice. If Tenant has
provided a Letter Of Credit, then, provided that Tenant tenders to Landlord a
replacement Letter of Credit or an amendment to the Letter of Credit (which
amendment or replacement must meet the applicable requirements set forth in
Section 6.02) for the appropriately reduced amount of the security deposit,
Landlord shall exchange the Letter of Credit then held by Landlord for the
replacement Letter of Credit tendered by Tenant, or execute the amendment, as
applicable.
6.08 Tenant's federal employer identification number is: 59-1588181.
ARTICLE 7
Subordination, Notice To Lessors And Mortgagees
7.01 This lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding 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 the
Building and/or any of such leases, whether or not such mortgages 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. This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver any instrument that
Landlord, the lessor of any such lease or the holder of any such mortgage or
any of their respective successors in interest may reasonably request to
evidence such subordination. In the event Tenant fails to execute and deliver
to Landlord such instrument within fifteen (15) days of request therefor,
Landlord may, but shall not be obligated to, execute such instrument for and on
behalf of Tenant as its attorneys-in-fact. In acknowledgment thereof and if
Tenant fails to execute and deliver any instruments required to carry out the
intent of this Section 7.01 within five (5) days after notice from Landlord of
Tenant's breach of its obligations set forth in this Section 7.01, then Tenant
hereby appoints Landlord as its irrevocable attorney-in-fact coupled with an
interest solely to execute and deliver any such instruments required to carry
out the intent of this Section 7.01 on behalf of Tenant. The leases to which
this lease is, at the time referred to, subject and subordinate pursuant to
this Article are hereinafter sometimes referred to as "superior leases" and the
mortgages to which this lease is, at the time referred to, subject and
subordinate are hereinafter sometimes referred to as "superior mortgages" and
the lessor of a superior lease or its successor in interest at the time referred
to is sometimes hereinafter referred to as a "lessor".
7.02 In the event of any act or omission of Landlord that would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
18
terminate this lease, or to claim a partial or total eviction, or entitle Tenant
to any abatement or offset against the payment of rent, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission or the accrual of such claim or right, to the holder of each superior
mortgage and the lessor of each superior lease whose name and address shall
previously have been furnished to Tenant, and (ii) unless such act or omission
shall be one which is not capable of being remedied by Landlord or such mortgage
holder or lessor within a reasonable period of time, 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 holder or 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, but no more than sixty (60) days after
the date such holder or lessor receives such notice (except to the extent it is
entitled under this lease or otherwise to more than sixty (60) days)), provided
such holder or lessor shall with due diligence give Tenant written notice of
intention to, and commence and continue to remedy such act or omission.
7.03 If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord under this lease, whether
through possession or foreclosure action or delivery of a new lease or deed, or
if a superior lease shall terminate or be terminated for any reason, then, at
the election and upon demand of the party so succeeding to Landlord's rights,
as the successor owner of the property of which the Demised Premises is a part,
or as the mortgagee in possession thereof, or otherwise (such party, owner or
mortgagee being herein sometimes called the "successor landlord"), Tenant shall
attorn to and recognize such successor landlord as 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, or as if it
were, a direct lease between the successor landlord and Tenant, upon all of the
executory terms, conditions and covenants as are set forth in this lease and
shall be applicable after such attornment, except that the successor landlord
shall not be:
(a) liable for any previous act or omission of Landlord (or its
predecessor in interest) under this lease, except for default of the Landlord
under this lease that are continuing after the successor landlord becomes the
Landlord under this lease;
(b) subject to any credits, offsets, claims, counterclaims,
demands or defenses which Tenant may have against Landlord (or its predecessors
in interest) except for offsets and defenses that are expressly set forth in
this lease;
(c) (except to the extent the lessor of a superior lease or holder
of a superior mortgage (before becoming a successor landlord) otherwise
expressly agreed in writing, either in such superior lease or superior mortgage)
bound by any previous modification of this lease or by any previous prepayment
of more than one month's fixed rent, unless such modification or prepayment
shall have been expressly approved in writing by the lessor of the superior
lease or the holder of the superior mortgage through or by reason of which the
successor landlord shall have succeeded to the rights of Landlord under this
lease;
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(d) bound by any covenant to undertake or complete any
construction of the Demised Premises or any portion thereof or pay for or
reimburse Tenant for any costs incurred in connection with such construction;
(e) required to account for any security deposit of Tenant other
than any security deposit actually delivered to the successor landlord by
Landlord;
(f) liable for the obligations of Landlord under this lease for
any period of time other than such period as such successor landlord holds such
interest;
(g) responsible for any monies owing by Landlord to the credit of
Tenant; and
(h) bound by any obligation to make any payment to Tenant or grant
or be subject to any credits other than any payment, grant or credits which
accrue after the successor landlord becomes the Landlord under this lease.
The foregoing provisions shall inure to the benefit of any successor landlord,
shall apply to the tenancy of Tenant notwithstanding that this lease may
terminate upon the termination of the superior lease, and shall be self-
operative upon any such demand, without requiring any further instrument to give
effect to said provisions. Tenant, however, upon demand of any successor
landlord, agrees to execute, from time to time, an instrument in confirmation
of the foregoing provisions, reasonably satisfactory to such successor landlord
and Tenant, in which Tenant shall acknowledge such attornment. Nothing
contained in this Section shall be construed to impair any right, privilege or
option of any successor landlord (except as otherwise expressly set forth in
Section 7.03) or, except as otherwise provided in this lease, to impair any
right, privilege or option of Tenant.
7.04 If, in connection with obtaining financing or refinancing for the
Building, or Landlord's estate and interest therein, a lender shall request
reasonable modifications to this lease as a condition to such financing or
refinancing, Tenant will not withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder (except, perhaps, to the extent that Tenant may be required to give
notices of any defaults by Landlord to such lender), or adversely affect
Tenant's rights or remedies under this lease or affect the leasehold interest
hereby created.
7.05 Landlord represents and warrants that, as of the date hereof, the
holder of the superior mortgage is Wells Fargo Bank Minnesota, N.A., as Trustee
for the Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates Series 2003-TFL1 (hereinafter referred to as the
"Existing Mortgagee").
7.06 Notwithstanding anything contained in this Article to the contrary,
but provided that the Tenant named herein is the then Tenant hereunder, and such
Tenant then leases at least ninety (90%) percent of the rentable area of the
Demised Premises, Landlord (a) shall use commercially reasonable efforts to
obtain and deliver to Tenant a Subordination, Non-Disturbance and Attornment
Agreement (hereinafter referred to as an "SNDA") for the benefit of Tenant from
the Existing Mortgagee and (b) shall obtain and deliver to Tenant an SNDA for
the benefit of Tenant from the holder of each new superior mortgage that becomes
effective after the date hereof and from the lessor under each superior lease
that becomes effective after the date hereof, which SNDA shall be in form and
20
substance reasonably satisfactory to such holder of each new superior mortgage
and such lessor under each superior lease and which shall not reduce any rights
afforded to Tenant under this lease. If Tenant fails to execute, acknowledge
or deliver to Landlord or to such holder or lessor such SNDA within thirty (30)
days after Landlord's delivery of same to Tenant, whether or not such holder or
lessor has already executed same, Landlord shall be deemed to have fulfilled all
of its obligations under this Section with respect to obtaining an SNDA from
such holder or lessor, as the case may be. For the purposes of this Section,
"commercially reasonable efforts" shall mean an obligation to use reasonable
commercial efforts, and shall not be interpreted to require Landlord to enter
into any agreement or undertaking to pay or otherwise confer or to actually pay
or otherwise confer anything of value to or for the benefit of a third-party
(including, without limitation, such holder or lessor), to guarantee any
obligation, or to otherwise modify any of its obligations under such superior
mortgage or superior lease. Landlord's failure or inability to obtain or
deliver to Tenant an SNDA (despite using such commercially reasonable efforts)
shall not be a default by Landlord, shall not entitle Tenant to exercise any
rights or remedies whatsoever and shall in no event affect this lease or
Tenant's obligations hereunder. Notwithstanding the foregoing, if any superior
lessor or the holder of a superior mortgage requires Landlord to pay a fee
solely for the preparation, negotiation and execution of any such SNDA
(including reimbursement of actual legal and other fees), Landlord shall so
notify Tenant and if Tenant agrees to pay the aforesaid fee on behalf of
Landlord and such payment by Tenant is acceptable to such holder of the
superior mortgage or to such superior lessor, then Landlord agrees to obtain
and deliver to Tenant an SNDA.
ARTICLE 8
Quiet Enjoyment
8.01 So long as no Event of Default exists, Tenant shall peaceably and
quietly have, hold and enjoy the Demised Premises subject, nevertheless, to the
obligations, terms, covenants and conditions of this lease and, as provided in
Article 7, to the superior leases and the superior mortgages.
ARTICLE 9
Assignment And Subletting
9.01 (a) Except as may otherwise be expressly set forth herein, 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 or any of its rights or estates
hereunder, sublet the Demised Premises or any part thereof, or suffer, or
permit, the Demised Premises, or any part thereof, to be used or occupied by
others, without the prior written consent of Landlord in each instance. If this
lease be assigned, or if the Demised Premises or any part thereof be sublet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, subtenant, or occupant, and apply the net amount
collected to the rent herein reserved, but no assignment, subletting, occupancy,
or collection shall be deemed a waiver of the provisions hereof, the acceptance
of the assignee, subtenant, or occupant as tenant, or a release of Tenant from
the further performance by Tenant of covenants on the part of Tenant herein
contained. Landlord's consent to an assignment or subletting shall not, in any
wise, be construed to relieve Tenant from obtaining Landlord's express written
21
consent to any further assignment or subletting. In no event shall any
permitted sublessee assign or encumber its sublease, further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space, or
any part thereof, to be used or occupied by others, without Landlord's prior
written consent in each instance.
(b) As used in this Article, except in the definition of the term
"Related Entity," the word "control," (including the derivations of the word
"control," such as "controlling" "controlled by" or "under common control with"
or words of like import) shall mean: (i) ownership of more than 50% of the
outstanding voting capital stock of a corporation or more than 50% of the
beneficial interests of any other entity or (ii) the ability effectively to
--
control or direct the business decisions of such corporation or entity. The
term "Related Entity" shall mean an entity which controls, is controlled by or
is under common control with Tenant, which for purposes hereof shall mean (x)
ownership by Tenant of more than 50% of the outstanding voting capital stock of
a corporation or more than 50% of the beneficial interests of any other entity
and (y) the ability to effectively control or direct the business decisions of
such corporation or entity.
9.02 If Tenant shall, at any time or times during the term of this lease,
desire to assign this lease or sublet all or part of the Demised Premises,
Tenant shall give notice thereof to Landlord, which notice (the "A/S Notice")
shall be accompanied by: (i) a conformed or photostatic copy of the proposed
assignment or sublease, the effective or commencement date of which shall be not
less than thirty (30) nor more than 180 days after the giving of such notice;
(ii) a statement setting forth, in reasonable detail, the identity of the
proposed assignee or subtenant, the nature of its business and its proposed use
of the Demised Premises; and (iii) current financial information with respect
to the proposed assignee or subtenant, including its most recent financial
report. In the case of a proposed assignment, the entire Demised Premises shall
be referred to as the "Leaseback Space," and in the case of a proposed
subletting, the portion of the Demised Premises that Tenant desires to sublet
shall be referred to as the "Leaseback Space." In lieu of the conformed or
photostatic copy of the proposed sublease described in clause (i) hereof, the
A/S Notice may be accompanied by a term sheet or letter of intent (the "Sublease
Term Sheet"), duly executed by both Tenant and the proposed subtenant, which
sets forth (A) the commencement date and the expiration date of the proposed
subletting, (B) the annual rental payable during the term of the proposed
subletting, (C) all material items of additional rent payable under, or with
respect to, the proposed sublease, including, without limitation, any additional
rent related to increases in real estate taxes or operating expenses for the
Building, increases in any price index or wage or labor rate, and any sprinkler
or water charges, (D) the amount and form of any security to be deposited by the
proposed subtenant, (E) the dollar amount of any work which Tenant is willing
to perform or pay for in the Leaseback Space, (F) any concession or free rent
period applicable to the proposed subletting, (G) all other material terms and
conditions of the proposed subletting, and (H) if the Leaseback Space is not
the entire Demised Premises, the rentable area of the Leaseback Space and a
floor plan thereof. To the extent a proposed assignment or sublease requires
Landlord's prior written consent, then each A/S Notice given to Landlord shall
be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option (hereinafter referred to as "Landlord's Option"),
(x) sublease the Leaseback Space from Tenant upon the terms and conditions
hereinafter set forth (if the proposed transaction is a sublease of all or
part of the Demised Premises and the proposed subletting is not for all (or
22
substantially all) of the balance of the term of this lease), (y) terminate this
lease (if the proposed transaction is an assignment or a sublease of all or
substantially all of the Demised Premises for a term expiring within the last
fifteen (15%) of the then balance of the term of this lease), or (z) terminate
this lease with respect to the Leaseback Space (if the proposed transaction is
a sublease of part of the Demised Premises for a term expiring within the last
fifteen (15%) of the then balance of the term of this lease). Landlord's Option
may be exercised by Landlord by notice to Tenant at any time during the twenty
(20) day period (the "A/S Review Period") commencing on the date (the "A/S
Notice Date") that Landlord has received the A/S Notice and all of the
documentation and information described in this Section 9.02; and through the
last day of the A/S Review Period Tenant shall not assign this lease nor sublet
such space to any person.
(b) In the event that Landlord exercises the Landlord's Option
described in clause (x) of Section 9.02(a) above in accordance with the
provisions of said Section 9.02(a) and within twelve (12) months thereof,
Landlord re-leases (herein, the "Succeeding Lease") the Leaseback Space or any
portion thereof (the "ReLet Space"), to any other person, party or entity
(herein, the "Succeeding Tenant"), then Landlord agrees to pay to Tenant the
"Shared Excess" (as such term is hereinafter defined), if any, with respect to
the ReLet Space, subject to and in accordance with the provisions hereinafter
contained. As used herein, the "Shared Excess" shall mean fifty (50%) percent
of the amount by which (1) the fixed rent and additional rent payable and
actually paid by the Succeeding Tenant pursuant to the Succeeding Lease for
the ReLet Space for the portion of the term thereof corresponding to the
remainder of the term of this lease (but not beyond the term of the Takeback
Sublease (as hereinafter defined) exceeds (2) the fixed rent and additional rent
payable by Tenant as set forth in this lease for the corresponding part of the
term with respect to the ReLet Space (the difference between (1) and (2) being
herein called the "Overage"), after (3) Landlord has recovered Landlord's
reasonable and customary expenses, including without limitation, for brokerage
commissions, advertising expenses, attorneys' fees and construction and design
allowances, payments on account of work and/or contributions to prepare the
ReLet Space for the Succeeding Tenant's occupancy (including the costs incurred
by Landlord in physically separating the ReLet Space from the balance of the
Demised Premises), as well as Landlord's lost income in rent concessions or due
to vacancy, all of which shall be charged against the first Overage actually
received by Landlord until fully recovered. The Shared Excess for the ReLet
Space shall continue to be paid for so long as the Overage is being received by
Landlord, provided, however, that no Shared Excess shall be required to be paid
and no Overage shall apply at any time after the term of this lease would have
expired pursuant to its own terms. Any payment to be made by Landlord to Tenant
pursuant to this Section shall be payable solely out of the Overage, if any, if,
as and when actually received by Landlord to the extent attributable to the
ReLet Space and to the portion of the term of the Succeeding Lease corresponding
to what would have been otherwise unexpired term of this lease and shall be
subject to the condition that there shall not have been any uncured default by
Tenant in observing or performing any of the terms, covenants and conditions of
this lease. If at the time Landlord would otherwise be obligated to make a
payment under this Section, but for the fact that at such time Tenant is in
breach or default of any of the terms, covenants and conditions of this lease
on Tenant's part to observe, perform or comply with, Landlord shall become
obligated to make such payment when such breach or default is cured, provided
Landlord accepts such cure and does not terminate this lease as a result of such
default, and provided further the other conditions to Landlord's obligation to
make such payment remain satisfied.
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9.03 (a) If Landlord exercises Landlord's Option to terminate this
lease in the case where Tenant desires either to assign this lease or sublet
all or substantially all of the Demised Premises, then this lease shall end and
expire on the date that such assignment or sublet was to be effective or
commence, as the case may be, and the fixed rent and additional rent shall be
paid and apportioned to such date.
(b) If Landlord exercises Landlord's Option to terminate this
lease in part in any case where Tenant desires to sublet part of the Demised
Premises, then, (i) this lease shall end and expire with respect to such part
of the Demised Premises on the date that the proposed sublease was to commence;
and (ii) from and after such date the fixed rent and Tenant's Proportionate
Share shall be adjusted, based upon the proportion that the rentable area of
the Demised Premises remaining bears to the total rentable area of the Demised
Premises.
9.04 (a) If Landlord exercises Landlord's Option to sublet the
Leaseback Space, such sublease (a "Takeback Sublease") to Landlord or its
designee (as subtenant) shall be at the lower of (i) the rental rate per
rentable square foot of fixed rent and additional rent then payable pursuant to
this lease and (ii) the rentals set forth in the proposed sublease or in the
Sublease Term Sheet, as the case may be, and shall be for the same term as that
of the proposed subletting, and such sublease shall:
(v) be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this lease except such as are
irrelevant or inapplicable, and except as otherwise expressly set forth to the
contrary in this Section;
(w) be upon the same terms and conditions as those contained
in the proposed sublease, or in the Sublease Term Sheet, as the case may be,
except such as are irrelevant or inapplicable and except as otherwise expressly
set forth to the contrary in this Section;
(x) give the sublessee the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease or any interest
therein and/or to sublet the Leaseback Space or any part or parts of the
Leaseback Space and to make any and all changes (Landlord hereby agreeing that
Tenant shall not be obligated to remove or restore any such changes,
alterations, decorations, installations or improvements), alterations,
decorations, installations and improvements in the space covered by such
sublease and if the proposed sublease will result in all or substantially all
of the Demised Premises being sublet, grant Landlord or its designee the option
to extend the term of such sublease for the balance of the term of this lease
less one (1) day;
(y) provide that any assignee or further subtenant, of
Landlord or its designee, may, at the election of Landlord, be permitted to
make changes, alterations, decorations, installations and improvements in the
Leaseback Space or any part thereof and shall also provide in substance that any
such changes, alterations, decorations, installations and improvements in the
Leaseback Space therein made by any assignee or subtenant of Landlord or its
designee may be removed, in whole or in part, by such assignee or subtenant, at
its option, prior to or upon the expiration or other termination of such
sublease provided that such assignee or subtenant, at its expense, shall repair
any damage and injury to that portion of the Leaseback Space so sublet caused
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by such removal (Landlord hereby agreeing that Tenant shall not be obligated to
remove or restore any such changes, alterations, decorations, installations or
improvements); and
(z) also provide that (A) the parties to such sublease
expressly negate any intention that any estate created under such sublease be
merged with any other estate held by either of said parties, (B) any assignment
or subletting by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's uncontrolled discretion, shall
deem suitable or appropriate, (C) Tenant, at Tenant's expense, shall and will at
all times provide and permit reasonably appropriate means of ingress to and
egress from the Leaseback Space so sublet by Tenant to Landlord or its designee,
and (D) that at the expiration of the term of such sublease, Tenant will accept
the space covered by such sublease in its then existing condition, subject to
the obligations of the sublessee to make such repairs thereto as may be
necessary to preserve the premises demised by such sublease in good order and
condition.
(b) If Landlord exercises Landlord's Option to sublet the
Leaseback Space, then:
(i) Landlord shall indemnify and save Tenant harmless from
all obligations under this lease as to the Leaseback Space during the period of
time it is so sublet to Landlord;
(ii) Performance by Landlord, or its designee, under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
lease, nor shall Tenant be liable for any default under this lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease; and
(iii) Tenant shall have no obligation, at the expiration or
earlier termination of the term of this lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord (or its
designee).
9.05 In the event that Tenant complies with the provisions of Section
9.02 and Landlord does not exercise any Landlord's Option within the A/S Review
Period, and provided that no Event of Default then exists, Landlord's consent
(which must be in writing and in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably withheld,
conditioned or delayed, provided and upon the condition that:
(a) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business and the Demised Premises, or the relevant
part thereof, will be used in a manner which (i) is in keeping with the then
standards of the Building, (ii) is limited to the use expressly permitted under
this lease, and (iii) will not violate any negative covenant as to use contained
in any other lease of space in the Building, Landlord agreeing to advise Tenant
of any such negative covenants promptly upon request;
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(b) the proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(c) if, on the date that Landlord receives the A/S Notice,
Landlord, in Landlord's reasonable determination, has available for leasing, or
expects to have available for leasing during the six (6) month period
commencing on such date, space in the Building that is comparable in size to
the Demised Premises (in the case of a proposed assignment by Tenant) or
comparable in size to the portion of the Demised Premises that Tenant desires
to sublet (in the case of a proposed subletting by Tenant), neither (i) the
proposed assignee or sublessee nor (ii) any person that, directly or indirectly,
controls, is controlled by, or is under common control with, the proposed
assignee or sublessee or any person who controls the proposed assignee or
sublessee, is then an occupant or tenant of any part of the Building;
(d) if, on the date that Landlord receives the A/S Notice,
Landlord, in Landlord's reasonable determination, has available for leasing, or
expects to have available for leasing during the six (6) month period
commencing on such date, space in the Building that is comparable in size to the
Demised Premises (in the case of a proposed assignment by Tenant) or comparable
in size to the portion of the Demised Premises that Tenant desires to sublet (in
the case of a proposed subletting by Tenant), the proposed assignee or sublessee
is not a person with whom Landlord is then, or shall have been during the
previous six (6) month period, negotiating to lease space in the Building;
(e) the proposed assignment agreement or sublease agreement, as
the case may be, shall be in form reasonably satisfactory to Landlord and shall
comply with the applicable provisions of this Article;
(f) at no time shall there be more than three (3) occupants or
entities occupying the Demised Premises, in all cases including Tenant and
Landlord (or its designee);
(g) the rental and other terms and conditions of the assignment
or sublease are in all material respects the same as those contained in the
proposed assignment or sublease furnished to Landlord pursuant to Section 9.02
or in the Sublease Term Sheet, as the case may be;
(h) Tenant shall not have: (i) advertised or publicized to the
public in any way the availability of the Demised Premises without prior notice
to, and approval by, Landlord, which approval shall not be unreasonably withheld
or delayed, nor shall any advertisement state the name (as distinguished from
the address) of the Building or the proposed rental, or (ii) listed the Demised
Premises for subletting or assignment at a rental rate less than the fixed rent
and additional rent at which Landlord is then offering to lease other space in
the Building;
(i) the proposed assignment agreement or sublease agreement, as
the case may be, shall not allow the use of the Demised Premises or any part
thereof for any purpose that is not expressly permitted under this lease,
subject to all of the terms, covenants restrictions and limitations set forth
in this lease; and
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(j) the proposed assignee or sublessee is not a person entitled,
directly or indirectly, to diplomatic or sovereign immunity or is not subject
to service of process in New York State or to the jurisdiction of the State
and Federal Courts located in New York State; and
(k) the sublease shall not provide for an option on behalf of the
subtenant thereunder to extend or renew the term of such sublease beyond the
date which is one (1) day prior to the last day of the term of this lease.
If within seventeen (17) days after the A/S Notice Date, Landlord fails to
respond to Tenant's request for Landlord's consent to the proposed assignment
or subletting (whether by granting or denying such consent or by requesting any
of the additional information or documentation to which Landlord is entitled
under this Article 9), Tenant may give to Landlord a second (2nd) notice
notifying Landlord that if within three (3) days after Landlord's receipt of
such second (2nd) notice Landlord fails to respond to Tenant's request for such
consent, such failure shall be deemed the granting of such consent. Thereafter,
if Landlord fails to respond to Tenant's request for such consent within such
three (3) day period, such consent shall be deemed given, but only to the
proposed assignment or subletting in question.
9.06 (a) Tenant shall reimburse Landlord within fifteen (15) days after
Landlord's demand, and as additional rent, for all reasonable and actual out-of-
pocket costs and expenses that may be incurred or paid by Landlord in connection
with all proposed assignments and sublettings, including, without limitation,
the costs of making investigations as to the acceptability of the proposed
assignee or subtenant, and legal costs incurred in connection with the reviewing
of the proposed assignment or subletting and all of the documents and other
information related thereto (which costs and expenses Tenant covenants and
agrees to reimburse to Landlord regardless of whether Landlord consents to the
proposed assignment or sublease or whether such consent is required hereunder).
(b) In the event that (i) Landlord fails to exercise any
Landlord's Option and consents to a proposed assignment or sublease and (ii)
Tenant fails to execute and deliver the assignment or sublease to which Landlord
consented within 120 days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of Section 9.02, before
assigning this lease or subletting all or part of the Demised Premises.
9.07 Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this lease. Notwithstanding any subletting and/or
acceptance of rent or additional rent by Landlord from any subtenant, Tenant,
except as otherwise expressly provided in Section 9.04 above, shall and will
remain fully liable for the payment of the fixed rent and additional rent due,
and to become due, hereunder, for the performance of all of the covenants,
agreements, terms, provisions and conditions contained in this lease on the
part of Tenant to be performed and for all acts and omissions of any licensee,
subtenant, or any other person claiming under or through any subtenant that
shall be in violation of any of the obligations of this lease, and any such
violation shall be deemed to be a violation by Tenant. Tenant further agrees
that, notwithstanding any such subletting, no other and further subletting of
the Demised Premises by Tenant, or any person claiming through or under Tenant
(except as provided in Section 9.04), shall, or will, be made, except upon
27
compliance with, and subject to, the provisions of this Article. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or
if Landlord shall exercise any of its options under Section 9.02, Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
losses, liabilities, damages, costs and expenses (including reasonable counsel
fees) resulting from any claims that may be made against Landlord by the
proposed assignee or subtenant or by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed assignment
or sublease.
9.08 With respect to each and every sublease or subletting, whether or
not consent is required under this Article, it is further agreed that:
(a) no subletting shall be for a term ending later than one day
prior to the expiration date of this lease;
(b) no sublease shall be valid, and no subtenant shall take
possession of the Demised Premises or any part thereof, until a true, complete,
fully-executed counterpart of such sublease has been delivered to Landlord; and
(c) each sublease shall provide that it is subject and subordinate
to this lease and to the matters to which this lease is or shall be subordinate,
and that, in the event of termination, re-entry, or dispossess by Landlord under
this lease, Landlord may, at its option, take over all of the right, title and
interest of Tenant as sublandlord under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not be:
(i) liable for any previous act or omission of Tenant under
such sublease;
(ii) subject to any offsets not expressly provided in such
sublease that therefore accrued to such subtenant against Tenant;
(iii) bound by any previous modification of such sublease or
by any previous prepayment of more than one (1) month's fixed rent, any
additional rent then due, in either case not approved by Landlord in writing,
which approval (in the case of a modification) shall not be unreasonably
withheld, conditioned or delayed provided that all of the applicable terms and
conditions with respect to a proposed subletting are satisfied, as if such
modification were a new sublease (e.g., if the proposed modification did not
involve the subletting of additional space then Landlord's Option would not
apply thereto);
(iv) bound by any covenant to undertake or complete any
construction of the premises demised to the subtenant or any portion thereof or
to perform any other work that Tenant is obligated to perform or to pay for or
reimburse the subtenant for any costs incurred in connection with any
construction or work;
(v) required to account for any security deposit of the
subtenant other than any security deposit actually delivered to Landlord;
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(vi) liable for the obligations of Tenant under such
sublease for any period of time other than such period as Landlord holds such
interest;
(vii) responsible for any monies owing by Tenant to the
credit of the subtenant;
(viii) bound by any obligation to make any payment to the
subtenant or grant or be subject to any credits; or
(ix) bound by any obligation to provide any service or
furnish any utility that Landlord is not obligated to provide or furnish under
this lease to the portion of the demised premises demised to the subtenant
under such sublease.
9.09 Any assignment or transfer, whether or not Landlord's consent is
required under this Article, 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 all of the obligations of this lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
contained in Section 9.01 shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers. The original named Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
lease, and notwithstanding the acceptance of fixed rent and/or additional rent
by Landlord from an assignee, transferee, or any other party, the original named
Tenant shall remain fully liable for the payment of the fixed rent and
additional rent and for the other obligations of this lease on the part of
Tenant to be performed or observed.
9.10 If Landlord shall give its consent (where such consent is required
pursuant to the terms of this lease) to any assignment of this lease or to any
sublease, Tenant shall in consideration therefor, pay to Landlord, as additional
rent:
(a) in the case of an assignment, an amount equal to 50% of all
sums and other consideration (collectively, the "Assignment Consideration")
payable to Tenant by the assignee for or by reason of such assignment
(including, but not limited to (x) sums payable for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less (y) in the case of a sale thereof, the then fair market
value thereof) and less the expenses, to the extent reasonable (such expenses
being hereinafter referred to as the "Assignment Expenses") paid by Tenant for
alteration costs (or contributions in lieu thereof), advertising, brokerage or
consulting fees or commissions and legal fees in connection with such
assignment; and
(b) in the case of a sublease, an amount equal to 50% of all
rents, additional rents, charges and other consideration (collectively, the
"Subletting Consideration") payable under the sublease to, or on behalf of,
Tenant by, or on behalf of, the subtenant, to the extent such amounts, in the
aggregate, exceed the fixed rent and additional rent 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 (including, but not
limited to (x) sums payable for the sale or rental of Tenant's fixtures,
29
leasehold improvements, equipment, furniture or other personal property, less
(y) in the case of the sale thereof, the then fair market value thereof) and
less the expenses, to the extent reasonable (such expenses being hereinafter
referred to as the "Subletting Expenses") paid by Tenant for alteration costs
(or contributions in lieu thereof), rent concessions or abatements, advertising,
brokerage or consulting fees or commissions and legal fees in connection with
such subletting.
The sums payable under subsection 9.10(a) shall be paid prior to the effective
date of the assignment in question, such payment being a condition precedent
to the effectiveness of Landlord's consent to such assignment, and the sums
payable under subsection 9.10(b) shall be paid to Landlord as and when the
Subletting Consideration is actually (and only to the extent) paid by the
subtenant, as the case may be. Together with Tenant's execution and delivery
of such assignment or sublease, as the case may be, Tenant shall deliver to
Landlord a statement of the Assignment Consideration and the Assignment
Expenses, or the Subletting Consideration and the Subletting Expenses, as the
case may be, certified as true, complete and correct by an officer or principal
of Tenant. In the event of any dispute with respect to the Assignment
Consideration, the Assignment Expenses, the Subletting Consideration or the
Subletting Expenses, such dispute shall be determined by arbitration in
accordance with the provisions of Article 34 hereof.
9.11 (a) For the purpose of this Article, the following are "Prohibited
Transfers" to which Section 9.01 shall apply as if any of such Prohibited
Transfers were an assignment of this lease: The issuance or transfer of
interests in Tenant or any guarantor of Tenant's obligations hereunder (a
"Guarantor") (whether stock, partnership interests, interests in a limited
liability company or otherwise) to a person or group of related persons, whether
in a single transaction or a series of related or unrelated transactions, in
such quantities that after such issuance or transfer, control of Tenant or such
Guarantor (as it shall be constituted after giving effect to such issuance or
transfer of interests in Tenant or Guarantor, as the case may be), directly or
indirectly, shall have changed, shall be deemed a Prohibited Transfer unless the
conditions of subsection (b) below are met. Any person or legal representative
of Tenant, to whom Tenant's interest under this lease passes by operation of
law, or otherwise, shall be bound by the provisions of this Article.
(b) Notwithstanding the foregoing, if Tenant or a Guarantor is a
corporation listed and traded on a nationally recognized stock exchange or
over-the-counter market, the transfer, sale or other disposition (including
issuance) of the stock of such corporation shall not be deemed an assignment of
this lease or a Prohibited Transfer. In addition, (i) transfers of the stock
of Tenant or Guarantor ("Stock Transfers") to a corporation into which or with
which Tenant or Guarantor, as the case may be, is merged or consolidated or (ii)
an assignment ("Related Entity Assignment") or sublease ("Related Entity
Sublease") to a Related Entity shall not be a Prohibited Transfer and shall be
permitted without Landlord's consent and without the applicability of Section
9.10 thereto, provided that: (A) in the case of a Stock Transfer or a Related
Entity Assignment, the net worth, computed in accordance with generally accepted
accounting principles, of the successor to Tenant or Guarantor (in the case of a
Stock Transfer) or of assignee (in the case of a Related Entity Assignment), as
applicable, plus the net worth of all Guarantors (including Online Guarantor)
who have in effect unlimited guaranties of Tenant's obligations under this lease
(as opposed to a guaranty that is limited in amount or time, such as a so-called
"good-guy" guaranty), in both cases immediately after such Stock Transfer or
Related Entity Assignment, is not less than the net worth of the named Tenant
30
on the date of this lease which Tenant represents and warrants is
$47,100,000.00; (B) in the case of a Stock Transfer or a Related Entity
Assignment, reasonable proof satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to the effective
date of any such transaction provided that the giving of such notice ten (10)
days prior to the effective date of such transaction does not violate any
applicable securities laws and if Tenant is unable to provide Landlord with the
aforesaid prior notice solely due to a violation of the securities laws, then
reasonable proof satisfactory to Landlord shall be delivered within ten (10)
days after the effective date of such transaction and if, at the time of
delivery of such other relevant documents, Landlord determines that the net
worth test was not satisfied and the transaction required Landlord's prior
written consent as if an assignment of the lease, then such transaction shall be
deemed a default by Tenant under the lease entitling Landlord to exercise all
remedies available to it under the lease; (C) in the case of a Related Entity
Assignment or a Related Entity Sublease, such books and records of the then
Tenant as may be necessary to establish that any assignee or sublessee claimed
by Tenant to be a Related Entity is in fact a Related Entity shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction provided that the giving of such notice ten (10) days prior to
the effective date of such transaction does not violate any applicable
securities laws and if Tenant is unable to provide Landlord with the aforesaid
prior notice solely due to a violation of the securities laws, then reasonable
proof satisfactory to Landlord shall be delivered within ten (10) days after the
effective date of such transaction and if, at the time of delivery of such other
relevant documents, Landlord determines that the net worth test was not
satisfied and the transaction required Landlord's prior written consent as if
an assignment of the lease, then such transaction shall be deemed a default by
Tenant under the lease entitling Landlord to exercise all remedies available
to it under the lease; (D) the purposes for which such successor to Tenant (in
the case of a Stock Transfer) or such assignee or sublessee (in the case of a
Related Entity Assignment or a Related Entity Sublease) shall use the Demised
Premises (or the applicable portions thereof) are limited to uses expressly
permitted by this lease (subject to all of the terms, covenants, conditions,
prohibitions, restrictions and limitations set forth in this lease); (E) an
executed duplicate original of the assignment and assumption agreement (in the
case of a Related Entity Assignment) or sublease (in the case of a Related
Entity Sublease), shall be delivered to Landlord for review by Landlord and
Landlord's counsel, at least ten (10) days prior to the effective date thereof
provided that the giving of such notice ten (10) days prior to the effective
date of such transaction does not violate any applicable securities laws and if
Tenant is unable to provide Landlord with the aforesaid prior notice solely due
to a violation of the securities laws, then reasonable proof satisfactory to
Landlord shall be delivered within ten (10) days after the effective date of
such transaction and if, at the time of delivery of such other relevant
documents, Landlord determines that the net worth test was not satisfied and
the transaction required Landlord's prior written consent as if an assignment
of the lease, then such transaction shall be deemed a default by Tenant under
the lease entitling Landlord to exercise all remedies available to it under the
lease; (F) Tenant (in the case of a Stock Transfer or a Related Entity Sublease)
or the assignor (in the case of a Related Entity Assignment) shall and will
remain fully liable for the payment of the fixed rent and additional rent due
and to become due under this lease and shall not be released from any of its
obligations or liabilities under this lease and Tenant shall be fully
responsible and liable for all acts or omissions of the sublessee (in the
case of a Related Entity Sublease) or the assignee (in the case of a Related
Entity Assignment) or anyone claiming under or through Tenant, or such sublessee
or such assignee, as the case may be; and (G) such assignee or sublessee (in
31
the case of a Related Entity Assignment or a Related Entity Sublease), as of
the effective date of such assignment or the commencement date of such sublease,
as the case may be, and all times thereafter, is a Related Entity.
Simultaneously with the delivery of such assignment and assumption agreement or
sublease, Tenant shall deliver to Landlord a certified copy of a duly adopted
resolution of the board of directors of both Tenant and the assignee or
sublessee, as applicable, authorizing the execution, acknowledgment and delivery
of said assignment and assumption agreement or sublease, and the transactions
contemplated therein. In connection with the information to be provided to
Landlord pursuant to this Section, Landlord shall have the right, at any
reasonable time, and from time to time, to examine such books and records of
the then Tenant as may be necessary to establish that such assignee or sublessee
remains a Related Entity. The first sentence of Section 9.01, Landlord's Option
and Section 9.10 above shall not apply to a Stock Transfer, a Related Entity
Assignment or a Related Entity Sublease, provided the conditions set forth in
clause (A) through (G) above are satisfied.
(c) Notwithstanding anything contained in this Article 9 to the
contrary, Tenant shall have the right, without Landlord's consent and without
regard to the provisions of Section 9.10 above, to assign the lease or sublet
the Demised Premises to an entity which (i) is Tenant's parent; (ii) is a wholly
owned subsidiary of Tenant; (iii) is a corporation in which Tenant owns more
than fifty (50%) percent of the outstanding capital stock; (iv) as a result of
a consolidation or merger with Tenant and/or Tenant's parent, shall own all of
Tenant's or Tenant's parent's capital stock; or (v) acquires all or
substantially all of the assets or stock of Tenant. Any transfer set forth in
items (i) - (v) of this subsection (c) shall be subject to the following
conditions: (A) Tenant shall remain fully liable for the payment of the fixed
rent and additional rent due, and to become due, hereunder, for the performance
of all of the covenants, agreements, terms, provisions and conditions contained
in this lease on the part of Tenant to be performed, (B) any such assignment,
sublease or transfer shall be subject to all of the terms, covenants and
conditions of this lease and such assignee, sublessee or transferee shall
expressly assume for the benefit of Landlord the obligations of Tenant under
this lease pursuant to a written instrument reasonably satisfactory to Landlord;
(C) the resulting entity pursuant to a transfer in accordance with items (iv)
and (v) above shall have a net worth at least equal to the net worth of the
Tenant named herein as of the date of this lease; (D) Tenant shall provide
Landlord with notice at least thirty (30) days prior to the effective date of
such assignment, sublease or transfer except if such prior notice violates any
securities laws provided that the giving of such notice ten (10) days prior to
the effective date of such transaction does not violate any applicable
securities laws and if Tenant is unable to provide Landlord with the aforesaid
prior notice solely due to a violation of the securities laws, then reasonable
proof satisfactory to Landlord shall be delivered within ten (10) days after
the effective date of such transaction and if, at the time of delivery of such
other relevant documents, Landlord determines that the net worth test was not
satisfied and the transaction required Landlord's prior written consent as if
an assignment of the lease, then such transaction shall be deemed a default by
Tenant under the lease entitling Landlord to exercise all remedies available
to it under the lease; and (E) Tenant shall reimburse Landlord within fifteen
(15) days of Landlord's demand, and as additional rent, for all reasonable and
actual out-of-pocket costs and expenses, not to exceed $5,000.00 for any
transaction set forth in this subsection (c), that may be incurred or paid by
Landlord in connection with all proposed transfers.
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(d) Notwithstanding anything contained herein to the contrary,
Tenant shall have the right, without requiring Landlord's prior consent, without
triggering Landlord's Option and without the following being deemed an
assignment of this lease, to (i) change Tenant from a publicly held corporation
to a private corporation, (ii) sell the stock in Tenant to the public pursuant
to a registered public offering; or (iii) alter the control of the shares of
Tenant's stock, provided, however, that (A) the Tenant remains Cache, Inc. or
a Successor to Cache, Inc. and (B) the net worth of Tenant immediately following
such transfer of stock shall be at least equal to the net worth of the named
Tenant herein as of the date of this lease.
9.12 The joint and several liability of Tenant and any immediate or
remote successor in interest to Tenant, and the due performance of the
obligations of this lease on Tenant's part to be performed or observed, shall
not be discharged, released, or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease.
9.13 The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises, on the Building directory, if any, 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, to any sublease of the Demised Premises, or to the
use or occupancy thereof by others.
ARTICLE 10
Compliance With Laws And Requirements Of Public Authorities
10.01 Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law and/or requirement of public authority, and
Tenant, at its expense, shall comply with all laws and/or requirements of public
authorities which shall, with respect to the Demised Premises or the use and
occupation thereof, or the abatement of any nuisance, impose any violation,
order or duty on Landlord or Tenant, arising from (i) Tenant's use of the
Demised Premises, except for the mere occupancy of the Demised Premises for
purposes expressly set forth in Section 2.01(a) hereof, (ii) the manner of
conduct of Tenant's business or operation of its installations, equipment or
other property therein, (iii) any cause or condition created by or at the
instance of Tenant, other than by Landlord's performance of any work for or on
behalf of Tenant, or (iv) breach of any of Tenant's obligations hereunder.
However, Tenant shall not be so required to make any structural or other
substantial change in the Demised Premises unless the requirement arises from
Tenant's manner of use of the Demised Premises (as distinguished from the mere
use thereof for the purposes expressly permitted pursuant to subsection
2.01(a) above) or from a cause or condition referred to in clause (ii), (iii)
or (iv) above. Furthermore, Tenant need not comply with any such law and/or
requirement of public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 10.02. Landlord, at its expense, shall comply with
all other such laws and requirements of public authorities as shall affect the
Demised Premises, but may similarly contest the same subject to conditions
reciprocal to subsections (a), (b) and (d) of Section 10.02.
10.02 Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
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Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings, provided that:
(a) Landlord shall not be subject to criminal penalty or to
prosecution for a crime nor shall the Demised Premises or any part thereof be
subject to being condemned or vacated, by reason of non-compliance or otherwise
by reason of such contest;
(b) Tenant shall defend, indemnify and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by reason of
such non-compliance or contest, including reasonable attorney's fees and other
expenses reasonably incurred by Landlord;
(c) such non-compliance or contest shall not constitute or result
in any violation of any superior lease or superior mortgage, or if 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 furnished at the expense of
Tenant; and
(d) Tenant shall keep Landlord advised as to the status of such
proceedings.
Without limiting the application of Subsection (a) above thereto, Landlord shall
be deemed subject to prosecution for a crime within the meaning of said
Subsection, if Landlord, or any officer of Landlord individually, is charged
with a crime of any kind or degree whatever, whether by service of a summons
or otherwise, unless such charge is withdrawn before Landlord or such officer
(as the case may be) is required to plead or answer thereto.
10.03 Tenant shall not cause or permit "Hazardous Materials" (as defined
below) to be used, transported, stored, released, handled, produced or installed
in, on or from the Demised Premises or the Building, except that Tenant may use
and store limited quantities of substances reasonably necessary in the ordinary
operation and maintenance of office equipment, provided such substances are used
and stored within the Demised Premises, in accordance with all applicable laws
and/or requirements of public authorities. The term "Hazardous Materials"
shall, for the purposes hereof, mean any flammable, explosive or radioactive
materials, hazardous wastes, hazardous and toxic substances or related
materials, asbestos or any material containing asbestos, or any other substance
or material, as now or hereafter defined as a hazardous material or a hazardous
substance by any federal, state or local law, ordinance, rule or regulation,
now or at any time hereafter in effect, including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
breach of the provisions of this Article, Landlord shall, in addition to all of
its rights and remedies under this lease and pursuant to law, require Tenant to
remove any or all of such Hazardous Materials from the Demised Premises or
the Building in the manner prescribed for such removal by all requirements of
law. The provisions of this Article shall survive the expiration or sooner
termination of this lease. Notwithstanding anything contained herein to the
contrary, Landlord hereby agrees, at Landlord's cost, to remove or cause the
removal of Hazardous Materials from the Demised Premises as required by
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applicable law except with respect to (a) Hazardous Materials required to be
removed by Tenant pursuant to this lease and (b) Hazardous Materials which
would not be required, by applicable laws, to be removed but for (i) any
Tenant's Work or Tenant's Changes (as defined in Article 13), or (ii) any
action of Tenant or any of Tenant's agents, employees or contractors. Any
such removal by Landlord will be accomplished in such a manner so as to
minimize interference with Tenant's use and occupancy of the Demised Premises,
provided, however, if, as a result of such removal Tenant is unable to use all
or any portion of the Demised Premises in the normal course of its business and
does not use all or such portion of the Demised Premises for a period in excess
of fifteen (15) consecutive business days by reason of such Hazardous Materials
removal, then Tenant shall be entitled to an abatement of fixed rent from and
after the sixteenth (16th) business day through the day when such Hazardous
Materials removal is completed based upon the ratio that the rentable square
foot area of the Demised Premises not used by Tenant bears to the rentable
square foot area of the Demised Premises.
10.04 Notwithstanding anything to the contrary contained in this lease,
except to the extent expressly a part of Landlord's Work, Tenant agrees that
it shall be solely responsible, at its expense, to cause the Demised Premises
(including all entrances and exits to and from the Demised Premises) to be, and
to remain throughout the term hereof, in compliance with the provisions of the
Americans With Disabilities Act of 1990 and any municipal laws, ordinances and
rules of like import, and any regulations adopted and amendments promulgated
pursuant to any of the foregoing (hereinafter referred to collectively as the
"ADA"), and Landlord shall have no obligation whatsoever in connection
therewith, except as otherwise expressly required in the Work Plans. Within
ten (10) days after receipt, Tenant shall advise Landlord in writing, and
provide Landlord with copies of, any notices alleging violations of the ADA
relating to any portion of the Demised Premises; any claims made or threatened
in writing regarding non-compliance with the ADA and relating to any portion of
the Demised Premises; or any governmental or regulatory actions or
investigations instituted or threatened regarding non-compliance with the ADA
and relating to any portion of the Demised Premises. In addition, without
Landlord's prior written consent in each instance, no portion of the Demised
Premises shall be used in any manner, and no Changes (as hereinafter defined)
shall be performed, if such manner of use or such Changes requires that any
alterations, changes, additions, improvements or other work be performed or
made to any portions of the Building (outside the Demised Premises, except to
the extent any of the foregoing is (or will be) performed as part of Landlord's
Work) or the Land, which consent may be withheld by Landlord in its sole and
absolute discretion. If Landlord gives its consent for such manner of use or
Changes, then, Landlord, at Tenant's sole cost and expense, shall perform or
make such alterations, changes, additions, improvements or other work, and
Tenant shall pay to Landlord as additional rent the cost and expense incurred
or paid by Landlord to perform or make same, within ten (10) days after
Landlord's demand therefor, which demand shall be accompanied by a reasonably
detailed statement of such alterations, changes, additions, improvements and
other work so performed or made and the cost and expense incurred or paid by
Landlord.
10.05 Landlord agrees at its sole cost and expense, to (a) furnish and
install (to the extent not furnished and installed) the life and fire safety
system within the Demised Premises (the "Class E System"), (b) connect same to
the Building's Class E system, and Tenant, at its sole cost and expense shall
thereafter maintain the Class E System within the Demised Premises in compliance
with all laws or requirements of public authorities and all requirements of
35
insurance bodies, including the performance of any changes or additions thereto
or replacements thereof. Except as otherwise expressly provided herein,
Landlord shall have no obligation whatsoever in connection with the Fire System
within the Demised Premises. Landlord's Class E system contractor for the
Building shall provide the necessary service to repair and maintain Tenant's
Class E System in the Demised Premises and Tenant shall pay to Landlord, within
fifteen (15) days after Landlord's written demand as additional rent, the
reasonable monthly cost (based on Landlord's actual cost, without "mark-up") of
providing such service to the Demised Premises.
ARTICLE 11
Insurance
11.01 Tenant shall not violate, or permit the violation of, any condition
imposed by the standard fire insurance policy then issued for office buildings
in the Borough of Manhattan, City of New York, and shall not do, permit anything
to be done, keep, or permit anything to be kept, in the Demised Premises which
would (a) subject Landlord to any liability or responsibility for personal
injury, death or property damage; (b) increase the fire or other casualty
insurance rate on the Building or the property therein over the rate which would
otherwise then be in effect (unless Tenant pays the resulting premium as
provided in Section 11.04); or (c) result in insurance companies of good
standing refusing to insure the Building or any of such property in amounts
reasonably satisfactory to Landlord.
11.02 Tenant covenants to provide on or before the Commencement Date and
to keep in force during the term hereof and during any other time that Tenant or
any person claiming by, through or under Tenant is in possession of, or is
otherwise using or occupying, any portion of the Demised Premises, the following
insurance coverage which coverage shall be effective on the Commencement Date:
(a) commercial general liability insurance, with broad form
endorsement, containing an omnibus named insured provision naming as additional
insureds Landlord, Max Capital Management Corp. and 1440 Broadway Partners
Corp., (collectively, the "Present Additional Insureds"), and the holders of all
superior mortgages, the lessors under all superior leases, Landlord's agents
and all other persons and entities designated by Landlord (but only to the
extent that Landlord specifically requests such holders, lessors, agents and
other persons and entities to be so named) and protecting Landlord, Tenant, all
of Tenant's subtenants, and all such other additional insureds, against (i) all
claims, demands or actions for injury to, or death of, persons or property,
arising from, related to, or in any way connected with the use or occupancy
of the Demised Premises, or caused by actions or omissions to act of Tenant,
its agents, servants and contractors, or of any person or entity claiming by,
through or under Tenant, and (ii) all accidents occurring in or about the
Demised Premises. Such policy shall have limits of liability of not less than
$5,000,000.00 combined single limit coverage on a per occurrence basis,
including property damage. Such policy shall contain a contractual liability
coverage endorsement with respect to Tenant's indemnification obligations under
this lease, and shall include independent contractors' coverage. Such insurance
may be carried under a blanket policy covering the Demised Premises and other
locations of Tenant, if any, provided such policy contains an endorsement (i)
naming Landlord (and the above-mentioned other persons and entities) as
additional insureds, (ii) specifically referencing the Demised Premises, and
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(iii) guaranteeing a minimum limit available for the Demised Premises equal to
the limits of liability required under this lease;
(b) Worker's compensation, and, if required by applicable law,
disability and such other similar insurance, in statutory amounts, covering all
persons that are performing Changes (as hereinafter defined), or with respect
to whom death or bodily injury claims could be asserted against Landlord, the
Land or the Building, each of the Present Additional Insureds and all other
additional insureds requested by Landlord; and
(c) property insurance coverage against all risk of loss or
damage from any cause whatsoever in an amount adequate to cover the cost of
replacement of all of personal property, fixtures, furniture, furnishings,
valuable papers and documents, data, leasehold improvements and equipment,
including Tenant's Work, Tenant's Property and all Changes, located in the
Demised Premises.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in New York State and rated by Best's Insurance Reports
or any successor publication of comparable standing and carrying a rating of
A- VIII or better or the then equivalent of such rating, and all such policies
shall contain a provision whereby the same cannot be cancelled or modified
unless Landlord and any additional insureds are given at least thirty (30) days
prior written notice of such cancellation or modification (such notice being
herein referred to as an "Insurance Cancellation Notice").
Prior to the time such insurance is first required to be carried
by Tenant and thereafter, at least fifteen (15) days prior to the expiration of
any such policies, Tenant shall deliver to Landlord either duplicate originals
of the aforesaid policies or binding certificates evidencing such insurance
naming Landlord, each Present Additional Insured and all other additional
insureds requested by Landlord as additional insureds, together with evidence of
payment for the policy. Such certificates shall also verify the primary nature
of the coverage and note the waiver of subrogation in favor of Landlord and each
Present Additional Insureds and all other additional insureds requested by
Landlord. If Tenant delivers certificates as aforesaid, Tenant upon reasonable
prior notice from Landlord, shall make available to Landlord, at the Demised
Premises, duplicate originals of such policies from which Landlord may make
copies thereof, at Landlord's cost. Tenant's failure to provide or keep in
force the aforementioned insurance shall be regarded as a material default
hereunder, entitling Landlord to exercise any or all of the remedies as provided
in this lease in the event of Tenant's default. In addition, in the event (A)
Tenant fails to provide or keep in force the insurance required by this lease,
at the times and for the durations specified in this lease, or (B) if an
Insurance Cancellation Notice is given to Landlord (whether or not the effective
date of the cancellation or modification referred to in such Insurance
Cancellation Notice has occurred), Landlord shall have the right, but not the
obligation, at any time and from time to time, and without notice, to procure
such insurance and or pay the premiums for such insurance in which event Tenant
shall repay Landlord within five (5) days after demand by Landlord, as
additional rent, all sums so paid by Landlord and any costs or expenses incurred
by Landlord in connection therewith without prejudice to any other rights and
remedies of Landlord under this lease.
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11.03 (a) Landlord and Tenant shall each secure an appropriate clause
in, or an endorsement upon, each property coverage policy obtained by it and
covering the Building, the Demised Premises, Tenant's Work, Tenant's Property
and Changes (as hereinafter defined) or the personal property, fixtures,
furnishings, valuable papers and documents, data, leasehold improvements and
equipment located therein or thereon, pursuant to which the respective insurance
companies waive subrogation or permit the insured, prior to any loss, to agree
with a third party to waive any claim it might have against said third party.
The waiver of subrogation or permission for waiver of any claim hereinbefore
referred to shall extend to the agents of each party and its employees and, in
the case of Tenant, shall also extend to all other persons and entities
occupying or using the Demised Premises. If and to the extent that such waiver
or permission can be obtained only upon payment of an additional charge then,
the party benefiting from the waiver or permission shall pay such charge within
fifteen (15) days after demand therefor, or shall be deemed to have agreed that
the party obtaining the insurance coverage in question shall be free of any
further obligations under the provisions hereof relating to such waiver or
permission. Tenant shall provide Landlord with a binding certificate of
insurance verifying this waiver in favor of Landlord, each Present Additional
Insured, all other additional insureds requested by Landlord, and their
respective employees and agents. Subject to the foregoing provisions of this
Section 11.03, and insofar as may be permitted by the terms of the insurance
policies carried by it, each party and their respective employees and agents
hereby releases the other with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interruption, as the case may be) occurring
during the term of this lease or during the move into and out of the Demised
Premises or during any other time that Tenant or any person claiming by, through
or under Tenant is in possession of, or is otherwise using or occupying, any
portion of the Demised Premises.
(b) In the event that Tenant shall be unable at any time to
obtain one of the provisions referred to in subsection (a) above, in any of its
insurance policies, Tenant shall cause Landlord to be named in such policy or
policies as one of the additional insureds, but if any additional premium shall
be imposed for the inclusion of Landlord as such an additional insured, Landlord
shall pay such additional premium upon demand or Tenant shall be excused from
its obligations under subsection (b) with respect to the insurance policy or
policies for which such additional premiums would be imposed. In the event that
Landlord shall have been named as one of the additional insureds in any of
Tenant's policies in accordance with the foregoing, Landlord shall endorse
promptly to the order of Tenant, without recourse, any check, draft, or order
for the payment of money representing the proceeds of any such policy, or any
other payment growing out of or connected with said policy, and Landlord hereby
irrevocably waives any and all rights in and to such proceeds and payments.
(c) In the event that Landlord shall be unable at any time to
obtain one of the provisions referred to in subsection (a) in any of its
insurance policies, Landlord shall, at Tenant's option, cause Tenant to be
named in such policy or policies as one of the additional insureds, but if any
additional premium shall be imposed for the inclusion of Tenant as such an
additional insured, Tenant shall pay such additional premium upon demand. In
the event that Tenant shall have been named as one of the additional insureds
in any of Landlord's policies in accordance with the foregoing, Tenant shall
endorse promptly to the order of Landlord, without recourse, any check, draft,
38
or order for the payment of money representing the proceeds of any such policy,
or any other payment growing out of or connected with said policy, and Tenant
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
11.04 If, by reason of a failure of Tenant to comply with the provisions
of Section 10.01 or Section 11.01, the rate of fire insurance with extended
coverage on the Building or equipment or other property of Landlord shall be
higher than it otherwise would be, Tenant shall reimburse Landlord, on demand,
for that part of the premiums for fire insurance and extended coverage paid by
Landlord because of such failure on the part of Tenant.
11.05 Landlord may, from time to time (but no more than three (3) times
during the term), require that the amount of the insurance to be provided and
maintained by Tenant under Section 11.02 hereof be increased so that the amount
thereof adequately protects Landlord's interest but in no event in excess of
the amount that would be required by other tenants occupying similarly sized
space in first-class office buildings in the borough of Manhattan for office
use and in no event in excess of the amount of insurance required to be provided
by such other tenants of first-class office buildings located in midtown
Manhattan.
11.06 If any dispute shall arise between Landlord and Tenant with respect
to the incurring or the amount of any additional insurance premium referred to
in Section 11.03 or the increase in amount of insurance referred to in Section
11.05, the dispute shall be determined by arbitration.
11.07 A schedule or make up of rates for the Building or the Demised
Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for fire insurance and extended
coverage for the premises concerned, shall be conclusive evidence of the facts
therein stated and of the several items and charges in the fire insurance rate
with extended coverage then applicable to such premises.
11.08 Each policy evidencing the insurance to be carried by Tenant under
this lease shall contain a clause that such policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance.
11.09 Landlord's sole obligation and liability with respect to
maintaining insurance coverage on or with respect to the Demised Premises or the
Building shall be to procure and maintain (a) comprehensive fire and extended
coverage insurance on the Building (exclusive of foundations and footings and
exclusive of Changes and the leasehold improvements made to the Building by
Tenant or the other tenants of the Building on an "all-risk" full replacement
cost basis), and (b) comprehensive general liability insurance in such form and
amounts that are carried by prudent owners of buildings in New York City that
are comparable to the Building. Such insurance may be carried under a blanket
policy covering the Building and other locations of Landlord (or Landlord's
affiliates), if any (provided such coverage is separately provided for the
Building).
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ARTICLE 12
Rules And Regulations
12.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit D, and such
reasonable changes therein (whether by modification, elimination or addition)
as Landlord at any time or times hereafter may make and communicate in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises except as required by any laws and/or requirements of
public authorities or any requirements of insurance bodies; provided, however,
that in case of any conflict or inconsistency between the provisions of this
lease and any of the Rules and Regulations as originally promulgated or as
changed, the provisions of this lease shall control.
12.02 Nothing in this lease contained shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants or conditions in any other lease, as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant or its employees, agents or visitors. However, Landlord shall
not enforce any of the Rules and Regulations in such manner as to discriminate
against Tenant or anyone claiming under or through Tenant.
ARTICLE 13
Tenant's Changes
13.01 Tenant shall make no changes in or to the Demised Premises of any
nature without Landlord's prior written consent in each instance, except as
otherwise expressly permitted in this Article.
13.02 (a) With Landlord's prior written consent in each instance, which
consent shall not be unreasonably withheld, conditioned or delayed, Tenant may,
from time to time during the term of this lease, at its sole expense, make such
alterations, additions, installations, substitutions, improvements and
decorations (hereinafter collectively called "Nonstructural Changes") in and to
the interior of the Demised Premises that are not structural in nature, that do
not result in, or require, an amendment to, or modification of, the certificate
of occupancy for the Building, and that do not otherwise affect the structural
parts or integrity of the Building and do not affect the proper functioning of
any of the Building's utilities, systems or services, as Tenant may reasonably
consider necessary for the conduct of its business therein, on the following
conditions:
(i) neither the outside appearance nor the strength of the
Building or any of its structural parts shall be affected;
(ii) no part of the Building outside of the Demised Premises
shall be physically affected; and
(iii) the proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected, and the usage of such systems by Tenant shall not be
increased in excess of that permitted under this lease.
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(b) For the purposes of this Article, a "Decorative Change" shall
mean a Nonstructural Change that is entirely decorative in nature, does not
require the approval of any governmental or quasi-governmental authority and
conforms to the then design criteria of the Building (as established from time
to time by Landlord), and a "Permitted Nonstructural Change" shall mean a
Nonstructural Change that conforms to the then design criteria of the Building
(as established from time to time by Landlord) and does not require the approval
of any governmental or quasi-governmental authority, the cost of which, together
with the cost of all other Changes (other than Decorating Changes) that have
not been completed and fully paid for, is not more than $100,000.00 during the
First Rent period and $150,000 during the Second Rent Period. Notwithstanding
the foregoing, to the extent that adding or replacing any cabling within the
Demised Premises is otherwise a Permitted Nonstructural Change, the cost thereof
shall not be considered in the limitations described in the preceding sentence.
Landlord's approval shall be deemed given for all Decorative Changes and
Permitted Nonstructural Changes, provided that (i) same are performed in
accordance with, and subject to, this Article and all other applicable
provisions of this lease, and (ii) at least ten (10) days prior to commencing
any such Decorative Change or Permitted Nonstructural Change, Tenant gives to
Landlord a notice of Tenant's intention to perform such Decorative Change(s)
or Permitted Nonstructural Change(s), which notice, to be effective, shall be
accompanied by a reasonably detailed description of the Decorative Change(s) or
Permitted Nonstructural Change(s) that Tenant intends to perform, the estimated
commencement date and completion date of such Decorative Change(s) or Permitted
Nonstructural Change(s), and the estimated cost thereof.
(c) For the purposes of this Article and Article 14 below, the
installation of a so-called UPS system shall be deemed a Nonstructural Change,
but not a Permitted Structural Change, and the UPS system itself shall be
deemed a Specialty Installation (as such term is defined and used in Article
14 below).
13.03 Tenant shall not make any alterations, additions, installations,
substitutions, improvements or decorations (hereinafter collectively referred
to as "Structural Changes") (i) outside the Demised Premises; (ii) in or to the
exterior of the Demised Premises; (iii) in or to the interior Demised Premises
that are structural in nature or that otherwise affect the structural integrity
or parts of the Building or that affect the proper functioning of any of the
Building's utilities, systems or services, or (iv) which result in, or require,
an amendment to, or modification of, the certificate of occupancy for the
Building, without Landlord's prior written approval in each instance, which
approval may be withheld by Landlord in its absolute and sole discretion.
13.04 Nonstructural Changes and/or Structural Changes (collectively,
"Changes") shall only be performed in accordance with and subject to, this
Article and the other applicable provisions of this lease.
13.05 Before commencing any Change (except for, subject to the
provisions of subsection 13.02(b) above, Decorative Changes and Permitted
Nonstructural Changes), Tenant shall advise Landlord thereof and shall submit
to Landlord proof reasonably satisfactory to Landlord of the total cost thereof
(including so-called "soft costs"), and, at its sole cost and expense, shall
prepare and submit to Landlord for Landlord's approval, reasonably detailed
plans and specifications therefor (such reasonably detailed plans and
specifications being herein referred to as "Tenant's Plans"), which approval
41
shall not be unreasonably withheld, conditioned or delayed for any Nonstructural
Changes described therein. The submission to Landlord of Tenant's Plans (or
any revisions thereto) shall not be effective unless three (3) sets are
delivered to Landlord c/o Max Capital Management Corp., 230 Park Avenue, New
York, New York 10169, Attention Director of Property Management, and three (3)
sets are delivered to Landlord at the office of the Building Manager located in
the Building, Attention: Building Manager. The actual out-of-pocket cost and
expense reasonably incurred and/or paid by Landlord in connection with the
review of the Tenant's Plans (and all revisions thereto), and the inspection of
the work in respect thereof, by Landlord and Landlord's architects, engineers
and other consultants and professionals shall be reimbursed by Tenant to
Landlord (as additional rent) within fifteen (15) days after Landlord's demand
therefor, Tenant hereby agreeing that neither Landlord's approval of the
Tenant's Plans (or any revisions thereto), nor its inspection of such work, nor
its right to inspect such work, shall impose upon Landlord any obligation or
liability whatsoever with respect thereto, including, without limitation, any
obligation or liability that might arise as a result of such work not being
performed in accordance with applicable laws and requirements or with the
Tenant's Plans (and revisions thereto) approved by Landlord or otherwise.
The review or approval by Landlord of any Tenant's Plans or any revisions
thereto is solely for Landlord's benefit, and is without any representation or
warranty whatsoever with respect to the adequacy, correctness or efficiency
thereof or otherwise. Neither the granting by Landlord of its approval of any
Tenant's Plans or any revisions thereto, nor Landlord's execution of any of the
applications referred to in Section 13.06 below, shall in any manner constitute
or be deemed to constitute a judgment or acknowledgment by Landlord as to their
legality or compliance with laws and/or requirements of public authorities.
Landlord may, as a condition of its approval, require Tenant to make revisions
in and to the plans and specifications and, except for Tenant's Work and for any
Changes made after Tenant's Work the cost of which, together with the cost of
all other Changes that have been completed and fully paid for, is not more than
$100,000.00 during the First Rent Period and $150,000.00 during the Second Rent
Period, to post a bond or other security reasonably satisfactory to Landlord to
insure the completion and payment of the Change in question. Landlord shall
respond, in reasonable detail, to Tenant's request to approve Tenant's Plans
within fifteen (15) business days after Landlord receives a complete set of
Tenant's Plans, and Landlord shall respond to Tenant's request to approve
revisions to Tenant's Plans within fifteen (15) business days after Landlord
receives such revisions. Except for an approval which is deemed given by
Landlord under this Section, Landlord's approval to any Tenant's Plans or
revisions thereto shall not be effective unless same is in writing. If within
fifteen (15) business days after Landlord receives a complete set of the
Tenant's Plans (or if within fifteen (15) business days after Landlord receives
any requested revisions thereto), Landlord fails to respond to Tenant's request
for Landlord's approval thereof (whether by granting or denying such approval
or by requesting revisions or further revisions), Tenant shall give to Landlord
a second (2nd) notice notifying Landlord that if within three (3) business days
after Landlord's receipt of such second (2nd) notice Landlord fails to respond
to Tenant's request for such approval, such failure shall be deemed the granting
of such approval. Thereafter, if Landlord fails to respond to Tenant's request
for such approval within such three (3) business day period (whether by granting
or denying such approval or by requesting revisions or further revisions to the
Tenant's Plans), such approval shall be deemed given, but only to the Tenant's
Plans (or revisions) so submitted. Tenant shall not use, employ or retain any
contractor, construction manager or mechanic, or permit the use, employment or
retention of any subcontractor, that has not been first approved by Landlord,
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which approval shall not be unreasonably withheld or delayed. In selecting a
general contractor or construction manager, Tenant shall allow a general
contractor or construction manager selected by Landlord to bid on the job but
nothing herein shall be deemed to require Tenant to select such general
contractor or construction manager. Notwithstanding the foregoing, for all
Changes (including all Tenant's Work) involving electrical equipment or wiring
(other than Tenant's computer cabling and telecommunications wiring within the
Demised Premises), heating, ventilation and/or air-conditioning systems or
equipment, plumbing equipment or systems or Class E (or other fire and
life safety) equipment or systems, Tenant may only use contractors and
subcontractors designated by Landlord, provided that such contractors and
subcontractors designated by Landlord are competitive in price with comparable
contractors and subcontractors for comparable work in similar buildings in
midtown Manhattan, and (a) the Tenant's Plans therefor shall be prepared, at
Tenant's sole cost and expense, by an engineer designated by Landlord, and
(b) all Tenant's Plans that are required to be submitted to, filed with, or
approved by, any governmental or quasi-governmental authority shall be submitted
or filed by an expediter designated by Landlord, at Tenant's sole cost and
expense (Landlord agrees to only designate engineers or expeditors charging
competitive and commercially reasonable fees as appropriate given the nature
of the work involved).
13.06 Before commencing any Change, Tenant shall, at its expense, obtain
all permits, notices, approvals and certificates required by all governmental
and quasi-governmental authorities for the commencement and prosecution of such
Changes, and, upon completion, for the final approval of such Changes, and shall
cause Tenant's Changes to be performed in compliance therewith, as well as with
all applicable laws and/or requirements of public authorities and all applicable
requirements of insurance bodies, in a good and workmanlike manner, using new
materials and equipment of a quality and class at least equal to the original
installations in the Building. To the extent any such permits, notices,
approvals or certificates cannot be obtained unless Landlord has executed the
application therefor, Landlord, at no cost to Landlord, shall execute such
applications within ten (10) days after Tenant's request therefor, provided
that no Event of Default exists and that all Tenant's Plans and revisions
thereto have been approved by Landlord. Notwithstanding the foregoing, as an
accommodation to Tenant, Landlord may, in its sole and absolute discretion
execute such applications prior to approving Tenant's Plans or any revisions
thereto, it being understood and agreed that any execution of any such
applications shall in no way be deemed to be the approval by Landlord of any of
the Changes contemplated in such applications or any of the Tenant's Plans or
revisions thereto in respect of such Changes, even if the Tenant's Plans or
revisions thereto in question were submitted to Landlord with, or prior to, the
submission to Landlord of such application(s). Duplicates of all such permits,
notices, approvals and certificates shall be delivered to Landlord before
commencing such Changes, and upon the completion thereof, as the case may be.
Changes shall be performed in such a manner as not to unreasonably interfere
with or delay, and (unless Tenant shall indemnify Landlord therefor to
Landlord's reasonable satisfaction) as not to impose any additional expense upon
Landlord in, the maintenance or operation of the Building or any part thereof.
Throughout the performance of all Changes, Tenant shall, at its expense, carry,
or cause to be carried, worker's compensation insurance in statutory limits and
general liability insurance and personal and property damage insurance for any
occurrence in or about the Building as set forth in Article 11 of this lease.
All such insurance policies shall name Landlord and its agents, as parties
insured, be in such limits as Landlord may reasonably prescribe and be placed
with insurers reasonably satisfactory to Landlord. Tenant shall furnish
43
Landlord with satisfactory evidence that such insurance is in effect before the
commencement of any Changes and, on request, at reasonable intervals thereafter
during the continuance of the Changes. If any Changes shall involve the removal
of any fixtures, equipment, or other property in the Demised Premises (other
than Tenant's Property), such fixtures, equipment, or other property shall be
promptly replaced, at Tenant's expense, with new fixtures, equipment, or other
property (as the case may be) of like utility and at least equal value unless
Landlord shall otherwise expressly consent in writing, and Tenant shall, upon
Landlord's request, deliver to Landlord any such fixtures, equipment, or
property so removed. Any such fixtures, equipment so removed that Landlord
does not request to be delivered to Landlord shall be discarded and removed
from the Building by Tenant at Tenant's sole cost and expense. Promptly after
the substantial completion of each Change, and to the extent customarily
prepared therefor or required by applicable laws and/or requirement of public
authorities Tenant, at its sole cost and expense, shall have prepared and
delivered to Landlord, as-built drawings, and copies of balancing reports,
operating manuals, maintenance logs, warranties and guaranties, sign-offs and
inspection reports with respect to the Changes in question.
13.07 Tenant shall, at its expense and with diligence and dispatch,
procure the cancellation or discharge of all notices of violation arising from,
or otherwise connected with, the Changes that shall be issued by the Department
of Buildings or any other public or quasi-public authority having or asserting
jurisdiction. Tenant shall defend, indemnify and save Landlord harmless from
and against all mechanic's and other liens filed in connection with the Changes
or for any other work claimed to have been done for, or materials furnished to,
Tenant, whether or not done or furnished pursuant to this Article, including,
without limitation, the liens of any security interest in, conditional sales
of, or chattel mortgages upon, any materials, fixtures or articles so installed
in and constituting part of the Demised Premises, and against all costs,
expenses and liabilities incurred or paid in connection with any such lien,
security interest, conditional sale, or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall satisfy or discharge
(by bonding or otherwise) all such liens, and remove same from the record,
within thirty (30) days after Landlord makes written demand therefor, subject
only to delays of the court in hearing or determining any applicable motion to
establish the amount of said bond; provided, however, that the granting of such
thirty (30) days, as same may be extended as expressly provided in this
sentence, shall not effect Tenant's other obligations and liabilities under this
lease, including the indemnification obligation set forth in this Section.
Nothing in this Section shall prevent Tenant from granting a security interest
or chattel mortgage in any of Tenant's Property, provided that at no time shall
any such security interest or chattel mortgage encumber or otherwise affect
Landlord, any estate or interest in the Land or the Building (or any portions
thereof or any interest therein).
13.08 (a) No Change shall be done in a manner that would: (i) create
any work stoppage, picketing, labor disruption, or dispute; (ii) violate
Landlord's union contracts affecting the Land and/or Building; or (iii)
interfere with the business of Landlord or any tenant or occupant of the
Building. In the event of the occurrence of any condition described above
arising from Tenant's exercise of any of its rights pursuant to the provisions
of this Article or any other provision of this lease, Tenant shall, immediately
upon notice from Landlord, cease the manner of exercise of such right giving
rise to such condition. In the event that Tenant fails to cease such manner of
exercise of its rights as aforesaid, Landlord, in addition to any rights
44
available to it under this lease, at law or equity, and shall have the right to
injunction without notice.
(b) Tenant shall make all arrangements for, and pay all expenses
incurred in connection with, use of the freight elevators servicing the Demised
Premises. Landlord agrees that during the Freight Elevator Hours (as
hereinafter defined) on business days there shall be no charge for Tenant's
normal use of the freight elevator servicing the Demised Premises. However,
Tenant acknowledges that (x) Tenant's use of such freight elevator is non-
exclusive and subject to scheduling by Landlord, (y) if Tenant's use of such
freight elevator for transporting materials, supplies, equipment, machinery,
furniture or furnishings will, in Landlord's reasonable opinion, disrupt the
operation of the Building (including the normal use of the freight elevators)
or, except as otherwise expressly provided in Section 18.06, if used in
connection with Tenant's move-in to the Demised Premises or the performance of
Tenant's Work or cannot be scheduled during the Freight Elevator Hours, then
Tenant will only be permitted to use such freight elevator during certain times
other than during the Freight Elevator Hours on business days, in which event
Tenant shall be obligated to pay for such usage at Landlord's then established
rates which, as of the date of this lease, is $150.00 per hour, and (z) that
there may be times when minimum usage of the freight elevator is required, such
as on weekend days, and, as of the date hereof, is a four (4) hour minimum.
Landlord agrees to use reasonable efforts to accommodate Tenant's freight
elevator and loading dock schedule requirements for Tenant's initial Tenant's
Work, subject to the foregoing provisions of this Section 13.08.
Notwithstanding the foregoing, provided no Event of Default exists, Tenant
shall not be charged for the use of such freight elevator to the extent such
use is in connection with the performance of Tenant's Work, and to the extent
the Tenant's Work is performed through the period ending on the date which is
six (6) months after the Commencement Date.
ARTICLE 14
Tenant's Property
14.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the term
of this lease, whether or not by or at the expense of Tenant, shall be and
remain a part of the Demised Premises, shall be deemed the property of Landlord
and shall not be removed by Tenant, except as hereinafter in this Article
expressly provided.
14.02 All paneling, movable partitions, lighting fixtures, special
cabinet work, other 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 permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises, (all of which are sometimes referred to as
"Tenant's Property") shall be and shall remain the property of Tenant and may
be removed by it at any time during the term of this lease; provided that if
any of Tenant's Property is removed, Tenant or any party or person entitled to
remove same shall repair or pay the cost of repairing any damage to the Demised
Premises or to the Building resulting from such removal. Any equipment or other
45
property for which Landlord shall have granted any allowance or credit to
Tenant or which has replaced such items originally provided by Landlord at
Landlord's expense shall not be deemed to have been installed by or for the
account of Tenant, without expense to Landlord, and shall not be considered
Tenant's Property. Anything contained in this Section 14.02 and in Section
14.03 below to the contrary, Tenant shall not be required to replace any
lighting fixtures installed by Tenant, or to repair minor holes in the walls
of the Demised Premises caused by the removal of such lighting fixtures, or
to re-sheetrock or re-paint or perform similar repairwork that may be
necessitated by the removal by Tenant of Tenant's Property except to the extent
that any of the damage caused by such removal is extensive or excessive.
14.03 At or before the Expiration Date, or the date of any earlier
termination of this lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property which is not attached to, or built into, the Demised
Premises except such items thereof as Tenant shall have expressly agreed in
writing with Landlord were to remain and to become the property of Landlord,
and, except as otherwise expressly set forth in this lease, shall fully repair
any damage to the Demised Premises or the Building resulting from such removal.
Tenant's obligation herein shall survive the termination of the lease.
14.04 Any other items of Tenant's Property (except money, securities and
other like valuables) which shall remain in the Demised Premises after the
Expiration Date or 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 either may be retained by Landlord as its property
or may be disposed of, without accountability, at Tenant's expense in such
manner as Landlord may see fit.
14.05 (a) For purposes of this lease, "Specialty Installation(s)"
shall mean installations consisting of kitchens (but not pantry areas),
executive bathrooms, raised computers floors, computer installations,
communication installations, security systems, fire detection and suppression
systems, vaults, internal staircases, dumbwaiters, pneumatic tubes, vertical
and horizontal transportation systems and other installations of similar
character or nature that are above and beyond standard or typical office
installations. Unless otherwise expressly advised in writing by Landlord to
the contrary, on or before the Expiration Date or sooner termination of this
lease, Tenant shall, at its sole cost and expense, remove all Specialty
Installation(s) from the Demised Premises and restore all slab and wall
penetrations to the condition that existed prior to such penetrations (such
removal and repair work being hereinafter referred to as the "Restoration
Work").
(b) Tenant's obligation and liability with respect to the removal
of Specialty Installation(s) and the performance of the Restoration Work shall
survive the Expiration Date (as same may be extended) or sooner expiration or
termination of this lease.
(c) In no event shall Tenant be obligated to remove or restore
any installations to the extent that same are typical or standard office
installations, notwithstanding anything to the contrary contained in Section
14.06 below.
14.06 Notwithstanding anything contained in this Article to the contrary
except for Specialty Installations, for any Change, including Tenant's Work,
46
for which Tenant's Plans are submitted to Landlord for Landlord's approval, if
Landlord approves the Change and the Tenant's Plans in question, and together
with such approval Landlord notifies Tenant that Tenant will be required at the
end of the term of this lease to remove a particular installation or improvement
described in such Tenant's Plans, then Tenant shall remove such installation or
improvement on or prior to the last day of the term of this lease and (except as
otherwise expressly set forth in this lease) restore all damage to the Demised
Premises and the Building caused by such removal.
ARTICLE 15
Repairs And Maintenance
15.01 Subject to the provisions of Section 15.02 below, Tenant shall
take good care of the Demised Premises. Tenant shall promptly, at its sole
cost and expense, make all nonstructural repairs to, the Demised Premises and
the fixtures, equipment and appurtenances therein, including all Building
systems and equipment to the extent same exclusively serve the Demised Premises
or which have been installed or materially modified in any way by or on behalf
of Tenant, as and when needed to preserve the Demised Premises (and all such
fixtures, equipment and appurtenances) in good working order and condition,
except for reasonable wear and tear and damage by casualty. In addition, but
subject to the provisions of Section 11.03 above, Tenant, at its expense, shall
promptly make all repairs, ordinary or extraordinary, interior or exterior,
structural or otherwise, in and about the Demised Premises and the Building, as
shall be required by reason of (i) the performance or existence of Tenant's
Work or Tenant's Changes, (ii) the installation, use or operation of Tenant's
Property in the Demised Premises, (iii) the moving of Tenant's Property in or
out of the Building, (iv) the negligence or willful act of Tenant or any of its
employees, agents or contractors, (v) the use of any portion of the Demised
Premises for a use that is not permitted under this lease, or (vi) a default
under any of the terms, covenants or conditions in this lease on Tenant's part
to observe, perform or comply with. Notwithstanding the foregoing, to the
extent that Tenant is obligated to perform any structural repairs to any portion
of the Demised Premises or other portion of the Building or is obligated to
perform any repairs outside of the Demised Premises, Landlord, at its election,
may perform such repairs on Tenant's behalf, in which event, Tenant shall
reimburse Landlord for the actual costs paid or incurred by Landlord to perform
such repairs within fifteen (15) days after Landlord's request therefor, which
request shall be accompanied by a reasonably detailed description of the repairs
in question and the costs thereof. Except if required by the negligence or
other fault of Landlord or its employees, agents or contractors, but subject to
the provisions of Section 11.03 above, Tenant, at its expense, shall replace
all materially damaged glass in or about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of interior doors and
wall and floor coverings in the Demised Premises and, for the repair and
maintenance of all lighting fixtures therein from and after the Commencement
Date. All repairs made by Tenant shall be made in accordance with Article 13
of this lease, as if such repairs were a Change, subject to Landlord's right
to make such repairs on behalf of Tenant, as more particularly provided above.
15.02 Landlord, at its expense, shall keep and maintain the Building
and its systems and facilities serving the Demised Premises, in good working
order, condition and repair.
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15.03 Except as may otherwise be expressly provided in this lease
including, without limitation, Section 18.06 below, Landlord shall have no
liability to Tenant by reason of any inconvenience, annoyance, interruption or
injury to business arising from Landlord, Tenant or others making or failing to
make any repairs or changes which, with respect to Landlord, Landlord is
required or permitted by this lease, or required by law to make, in or to any
portion of the Building or the Demised Premises, or in or to the fixtures,
equipment or appurtenances of the Building or the Demised Premises, provided
that Landlord shall use due diligence in making any repairs and shall perform
such repair work, except in case of emergency, at times reasonably convenient
to Tenant and otherwise in such manner as will not materially interfere with
Tenant's use of the Demised Premises; provided, however, the foregoing shall
not require Landlord to perform any such repairs or changes on an overtime or
premium time basis except in the case of an Abatement Event (as hereinafter
defined) or, in Landlord's reasonable determination, actually threatens the
health and safety of the occupants of the Demised Premises.
ARTICLE 16
Electricity
16.01 Subject to the terms of Section 16.09 below of this Article,
Landlord shall furnish electrical service at the electrical closet(s) serving
the Demised Premises, for use in the Demised Premises (inclusive of the
operation of the Building HV systems and AC system (as such terms are
hereinafter defined) within the Demised Premises), in the amount of seven (7)
watts per usable square foot on a connected load basis. Such capacity shall be
provided by one or more sources as determined by Landlord and protected by
fuses or circuit breakers with the sum total nameplate capacity not less than
the total amperes identified above. A meter or meters shall measure the amount
of "Usage" (as defined in subsection 16.02(a)) solely to the Demised Premises.
Meter(s) will be furnished and installed, or made operational, by Landlord, at
its sole cost and expense as part of Landlord's Work. Where more than one (1)
meter measures the amount of Usage, Usage through each meter shall be computed
and billed separately in accordance with the provisions of this Article 16.
16.02 (a) For purposes of this Article:
(i) "Usage" shall mean actual usage of electricity in the
Demised Premises as measured by the aforesaid metering system for each calendar
month or such other period as Landlord shall determine during the term of this
lease and shall include the quantity and peak demand (kilowatt hours and
kilowatts);
(ii) "Landlord's Rate" shall mean Landlord's average cost
per kilowatt and average cost per kilowatt hour (including, in both cases, all
applicable taxes, surcharges, demand charges, energy charges, fuel adjustment
charges, time of day charges and other charges, adjustments and sums payable in
respect thereof) of purchasing electric current for the Building from the
company supplying electric current to the Building;
(iii) "Basic Cost" shall mean the product of (a) Usage
multiplied by (b) the Landlord's Rate, for the period that corresponds to the
period during which Usage was measured.
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(iv) "Tenant's Cost" shall mean an amount equal to the sum
of (a) the Basic Cost plus (b) seven and one-half (7.5%) percent of the Basic
Cost for Landlord's overhead and expenses in connection with submetering.
(b) Where more than one meter measures the amount of Usage,
Usage through each meter shall be computed and billed separately in accordance
with the provisions of this Article 16.
16.03 Landlord shall, from time to time but not more often than monthly,
furnish Tenant with an invoice indicating the period during which the Usage was
measured and the amount of Tenant's Cost payable by Tenant to Landlord for such
period. Within fifteen (15) days after receipt of each such invoice, Tenant
shall pay the amount of Tenant's Cost set forth thereon to Landlord as
additional rent. In addition, if any tax is imposed upon Landlord by any
municipal, state or federal agency or subdivision with respect to the purchase,
sale or resale of electrical energy supplied to Tenant hereunder, then Tenant
agrees that to the extent permitted by law, such taxes shall be passed on to
Tenant and included in the bill to, and paid by, Tenant to Landlord, as
additional rent.
16.04 Tenant hereby acknowledges that Landlord has made no representation
or warranty as to whether or not the electrical service described in subsections
(i) and (iii) above is or will be sufficient or adequate for Tenant's electrical
needs from time to time during the term of this lease. In addition, Landlord
shall not in any wise be liable or responsible to Tenant for any loss, damage,
or expense that Tenant may sustain or incur if either the quantity or character
of electrical service is changed, is no longer available, or is unsuitable for
Tenant's requirements, except to the extent that such change, unavailability or
unsuitability is due to the intentionally wrongfully acts or gross negligence
of Landlord or its employees or agents.
16.05 In no event shall Tenant use or install any fixtures, equipment or
machines the use of which in conjunction with other fixtures, equipment and
machines in the Demised Premises would result in an overload of the electrical
circuits servicing the Demised Premises.
16.06 (a) Tenant covenants and agrees that, at all times, its use of
electric current shall never exceed the capacity of the feeders to the Building
or the risers or wiring installation thereof, which shall not be less than the
capacity necessary to furnish the electric service described in Section 16.01
above. In connection therewith, Tenant expressly agrees that all installations,
alterations and additions of and to the electrical distribution system within
the Demised Premises shall be subject to Landlord's prior written approval in
each instance (which approval shall not be unreasonably withheld, conditioned
or delayed), and, if such approval shall be given, rigid conduit for risers
only shall be permitted. If, in connection with any request for such approval,
Landlord shall, in its sole judgment, determine that additional risers, feeders,
wiring installation or other equipment are required, Landlord shall, at the sole
cost and expense of Tenant, install such additional risers, feeders, wiring
installations and other equipment that Landlord shall deem necessary with
respect thereto, provided, however, that, if Landlord shall determine, in its
sole judgment, that the same will cause permanent damage or injury to the
Building or to the Demised Premises, cause or create a dangerous or hazardous
condition, entail excessive or unreasonable alterations, repairs, or expense,
materially interfere with, or materially disturb, the other tenants or occupants
of the Building, or adversely affect Landlord's ability to supply or furnish
49
electricity to other portions of the Building at any time during the term of
this lease, then Landlord shall not be obligated to make such installation, and
Tenant shall not make the installation, alteration, or addition to the
electrical distribution system within the Demised Premises with respect to
which Tenant requested Landlord's approval. All of the aforesaid costs and
expenses are chargeable and collectible as additional rent, and shall be paid
by Tenant to Landlord within fifteen (15) days after rendition of any bill or
statement to Tenant therefor.
(b) Tenant shall furnish, install and replace, as required, all
lighting tubes, lamps, bulbs and ballasts required in the Demised Premises, at
Tenant's sole cost and expense. Subject to Tenant's rights under Section 14.02
above, all lighting tubes, lamps, bulbs and ballasts so installed shall become
Landlord's property upon the expiration or sooner termination of this lease.
Additionally, all fixtures installed by Tenant, if same do not conform to the
description set forth hereafter, shall be lamped and ballasted (or relamped and
reballasted) throughout the Demised Premises by Tenant at its expense as
follows: fluorescent fixtures shall be lamped with F40WW energy saving type
lamps and ballasted with energy saving type ballasts; and incandescent fixtures
shall be lamped with ER50W and ER75W type lamps.
16.07 In the event the meter(s) installed in the Demised Premises for the
measurement of electricity consumption in the Demised Premises or any
alternative submetering system installed by Landlord at a later date, becomes
prohibited (by applicable laws and/or requirements of public authorities) from
use, then Landlord, at its expense, may cause an independent electrical engineer
chosen by Landlord or an electrical consulting firm selected by Landlord
(hereinafter referred to as the "Electrical Consultant") to survey and determine
Usage in, and Basic Cost for, the Demised Premises from time to time, at least
once per twelve (12) month period, and the Electrical Consultant shall make
such determination using criteria generally accepted in the Metropolitan New
York City area and Landlord's Rate in effect at the time, and shall include the
quantity and peak demand, for all electricity consumed by Tenant, plus seven
and one-half (7.5%) percent of the Basic Cost for Landlord's expenses and
administration fees. The determination made by the Electrical Consultant shall
be binding on both Landlord and Tenant and such amount shall be deemed Tenant's
Cost.
16.08 Notwithstanding anything in Section 16.07 to the contrary, Tenant
shall have the right as hereinafter provided, to contest any amounts determined
by the Electrical Consultant pursuant to Section 16.07 as shall be due to
Landlord as a result of any such survey. In the event that Tenant fails to
send a written notice (hereinafter referred to as an "Objection Notice") to
Landlord within sixty (60) days after the date of the Electrical Consultant's
notice containing said Usage and Basic Cost, such notice shall become conclusive
and binding upon Tenant. If Tenant disputes any such notice by sending an
Objection Notice within the time and in the manner hereinbefore provided, then
Tenant shall, at its sole cost and expense, have the right to engage an
electrical engineer or electrical consulting firm (hereinafter referred to as
"Tenant's Consultant") who shall promptly make a survey (hereinafter referred
to as the "Disputing Survey") indicating Tenant's electrical usage in the
Demised Premises. In the event that Landlord and Tenant are unable to agree on
the amount of Usage and Basic Cost within thirty (30) days after the date
Tenant furnishes Landlord with a copy of the Disputing Survey, then the
Electrical Consultant and Tenant's Consultant shall select a mutually acceptable
electrical engineer or electrical consulting firm (hereinafter referred to as
the "Third Consultant") within ten (10) days after the expiration of such
thirty (30) day period. The Electrical Consultant and Tenant's Consultant shall
50
submit the dispute to the Third Consultant and the determination by the Third
Consultant shall be conclusive and binding upon Landlord and Tenant, except that
the Third Consultant's determination shall not be less than or greater than the
determinations of the Electrical Consultant and Tenant's Consultant. During the
pendency of any such dispute, Tenant shall pay to Landlord the amount set forth
in the Electrical Consultant's notice until the dispute is finally determined
in accordance with the provisions of this Section and, in the event that such
final determination is less than the amount set forth in the Electrical
Consultant's notice, Landlord shall, at Tenant's election, refund to Tenant the
amount of such excess payment or credit any such excess against any amounts
then due or becoming due to Landlord under this lease. The cost of the Third
Consultant shall be borne equally by Landlord and Tenant.
16.09 Provided that it is physically possible for Tenant to receive the
electric service described in Section 16.01 above directly from one or more of
the companies or providers then serving the area in which the Building is
located, Landlord may discontinue the aforesaid service upon thirty (30) days'
notice to Tenant without being liable to Tenant therefor and without in any
way affecting this lease or the liability of Tenant hereunder, and the same
shall not be deemed to be a lessening or diminution of services within the
meaning of any law, rule, or regulation now or hereafter enacted, promulgated,
or issued. Landlord agrees that if it elects to discontinue the electric
service as aforesaid, such discontinuance will be done on a non-discriminatory
basis. In the event that Landlord gives such notice of discontinuance, Landlord
shall permit Tenant to receive such service directly from one of such companies
or providers and shall permit Landlord's wires and conduits, to the extent
safely capable, to be used for such purpose. Any additional wires, conduits,
or other equipment necessary and proper in connection therewith shall be
installed by Landlord in accordance with the terms of, and subject to the
conditions contained in this Article. In the event that Landlord exercises its
rights under this Section 16.09, then: (a) Tenant shall contract for such
electrical service directly with the said company or provider for all of
Tenant's electric current requirements and (b) Landlord shall have no obligation
to furnish electric current to Tenant or the Demised Premises. Provided Tenant
is diligently and in good faith arranging to obtain electricity directly from
said company or provider, Landlord may not discontinue the electric service to
the Demised Premises until Tenant is able to contract directly for, and actually
receive, such electric service. All meters and all additional panel boards,
feeders, risers, wiring and other conductors and equipment which may be required
to obtain electricity, of substantially the same quantity, quality and character
as Landlord is obligated to furnish under Section 16.01, shall be installed by
Landlord: (1) at Landlord's expense, if Landlord shall have discontinued
furnishing electricity to the Demised Premises voluntarily, or (2) at Tenant's
expense, if Landlord shall have been compelled to discontinue furnishing
electricity to the Demised Premises by reason of any act or omission of Tenant
(other than the mere use of the Demised Premises for the purposes expressly
permitted under Section 2.01(a) above), or (3) at the equal expense of Landlord
and Tenant if such discontinuance shall have been by compulsion of law or of
any rule or regulation and not by reason of any act or omission of Tenant (other
than the mere use of the Demised Premises for the purposes expressly permitted
pursuant to subsection 2.01(a) above).
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ARTICLE 17
Heat, Ventilating And Air-Conditioning
17.01 For the purposes of this lease:
(a) "Heating Season" shall mean October 15 through April 15;
(b) "business days" shall mean Mondays through Fridays, except
such days as are observed by the State or Federal government as legal holidays
and those days designated as holidays by the applicable building service union
employees contract (all of such holidays being hereinafter referred to as
"Holidays");
(c) "regular hours" shall mean the hours between 8:00 A.M. and
6:00 P.M. on business days, and the hours between 9:00 A.M. and 1:00 P.M. on
Saturdays, except for Saturdays that are Holidays; and
(d) "after hours" shall mean, with respect to heating service,
any time other than regular hours during the Heating Season.
17.02 In accordance with, and subject to, the provisions of this Article,
Landlord shall furnish heat to the Demised Premises (the "heating service")
through the perimeter units presently located in the Demised Premises, which
heating service and air-conditioning service (as hereafter defined) shall be
in compliance with the performance specifications set forth in Exhibit H
annexed hereto and made a part hereof as may be required for reasonably
comfortable occupancy of the Demised Premises during regular hours of business
days. The systems through which Landlord so supplies the heating service to
the Demised Premises are herein referred to as the "Building HV systems."
17.03 At no additional cost to Tenant, but subject to energy conservation
requirements of governmental authorities, Landlord shall furnish adequate
heating service during regular hours during the Heating Season. If Tenant shall
require after hours heating service during the Heating Season, Landlord shall
furnish such after hours heating service, but for such after hours heating
service on business days only, upon at least four (4) hours prior notice on such
business day, and for such after hours heating service on a day other than a
business day, only upon notice given not less than four (4) hours before the
end of regular hours on the immediately preceding business day, and at
Landlord's then prevailing hourly charges for providing such service, which
shall be paid by Tenant within fifteen (15) days after written demand as
additional rent. As of the date of this lease, the after hours heating service
is $250.00 per hour. In the event that such after hours heating service is
requested and shared by Tenant and other tenants, the cost thereof shall be
prorated, on a rentable square foot basis among all tenants who have requested
and who are sharing such after hours heating service. Notwithstanding anything
contained in this lease which may be deemed to the contrary, Landlord shall
have no obligation to furnish after hours heating service other than during the
Heating Season.
17.04 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified for the Building's HV systems or rearrangement of partitioning
which interferes with normal operation of the heating service in the Demised
Premises, may require changes in the Building's HV Systems. Such changes, so
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occasioned, shall be made by Tenant, at its expense, subject to Landlord's
prior written approval of such changes, which approval may be withheld for any
reason. Tenant shall not make any change, alteration, addition or substitution
to the Building's HV systems without Landlord's prior written approval, which
may be withheld for any reason. In addition, Tenant agrees at all times to
cooperate fully with Landlord and to abide by all reasonable regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the Building's HV systems.
17.05 (a) (i) As part of Landlord's Work, Landlord is furnishing and
in accordance with, and subject to, the provisions of this Article and the other
applicable provisions of this lease, but subject to energy conservation
requirements of government authorities, Landlord shall furnish chilled water to
the Demised Premises (the "chilled water service") during regular hours on
business days during the Cooling Season (which shall be May 1 through October
14), in such amounts as to operate the Building's air-conditioning system (the
"AC system") and Tenant's AC Equipment (as hereinafter defined) at its rated
capacity, through the Building's chilled water distribution systems to provide
air-conditioning service to the Demised Premises. Landlord shall perform such
work in connection with the AC system as set forth on the Preliminary Plan
annexed hereto as Exhibit C. If Tenant shall require after hours chilled water
service during the Cooling Season, Landlord shall furnish such after hours
chilled water service but only upon at least twenty-four (24) hours prior notice
(landlord hereby agreeing to use reasonable efforts to accommodate Tenant's
request for after hours chilled water service which is given by Tenant upon
less than twenty-four (24) hours prior notice) and at Landlord's then prevailing
hourly charges for providing such service, which shall be paid by Tenant within
thirty (30) days after written demand as additional rent. As of the date of
this lease, the after hours chilled water service charge is $350.00 per hour.
Landlord's actual cost for providing chilled water shall include the cost and
expense of electricity, water and labor. Notwithstanding anything contained in
this lease which may be deemed to the contrary, Landlord shall have no
obligation to furnish after hours chilled water service during the Heating
Season.
(ii) Tenant, at its expense, may furnish and install
additional air-conditioning units (collectively, the "Supplemental Units") in
the Demised Premises, subject to Landlord's prior written approval, including,
without limitation, approval as to the size, type and configuration of such
Supplemental Units and Tenant's Supplemental AC Equipment (as hereinafter
defined), to provide supplemental air-conditioning to the Demised Premises. The
installation of the Supplemental Units shall be performed in accordance with the
applicable provisions of this lease, including, without limitation, Article 13.
If Tenant so installs the Supplemental Units, Tenant, at its sole cost and
expense, shall furnish, design, install and distribute (all within the Demised
Premises) the ductworks, fans, blowers, chilling equipment, thermostatic
controls and other facilities, equipment and machinery (collectively, "Tenant's
Supplemental AC Equipment") related to the Supplemental Units, and shall, in
connection with such distribution, furnish, design, and installation, distribute
and locate Tenant's Supplemental AC Equipment in accordance with the reasonable
engineering, design and locational requirements of Landlord, if any. The
Supplemental Units and all Tenant's Supplemental AC Equipment shall be installed
by Tenant at its sole cost and expense and in accordance with, and subject to,
the applicable provisions of this lease, and shall be located solely within the
Demised Premises. The connection to the Building chilled or condenser water
source shall be performed by Landlord's Building contractors and Tenant shall
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pay Landlord a one-time connection charge, not to exceed $2,500.00 per each
point of tap-in of such Supplemental System, provided that such work is part of
and occurs during the performance of Tenant's initial Tenant's Work. To the
extent the installation of Tenant's Supplemental System occurs at any other
time during the term of the lease, Tenant shall pay Landlord's then prevailing
connection charge. The connection charge shall be payable by Tenant, as
additional rent within ten (10) days of Landlord's demand and does not include
the costs for any labor, materials or services furnished to Tenant with respect
to the Supplemental Air-Conditioning System over and above the connection to
the Building chilled or condenser water source.
(iii) The louvers and location thereof to be used in
connection with the Supplemental Units shall be designated by Landlord.
(a) The ductwork, fans, blowers, chilling equipment, thermostatic
controls and other facilities, equipment and machinery which provide air-
conditioning to the Demised Premises on the date hereof, are herein collectively
referred to as the "Tenant's AC Equipment." Tenant shall, at its expense,
properly and continuously maintain, repair and cause any and all replacements of
the Tenant's AC Equipment. Tenant's obligation to maintain the Tenant's AC
Equipment shall include, but not be limited to, the periodic cleaning and/or
replacement of filters, replacement of fuses and belts, the calibration of
thermostats and all startup and shut down maintenance of the Tenant's AC
Equipment. Such maintenance obligations shall be performed throughout the term
of this lease, on Tenant's behalf, by a reputable air-conditioning maintenance
company engaged by Tenant at its expense. In the event Tenant shall fail to
engage an air-conditioning maintenance company as aforesaid, then,
notwithstanding anything contained in this lease which may be deemed to the
contrary, and in addition to all of Landlord's other rights and remedies,
Landlord may (but shall not be obligated to) perform such maintenance and/or
engage an air-conditioning service company at Tenant's expense to perform the
aforesaid maintenance to the Tenant's AC Equipment, and Tenant shall pay as
additional rent hereunder, within thirty (30) days after Landlord's demand
therefor, all expenses incurred by Landlord in connection therewith, which
demand shall be accompanied by reasonable substantiating evidence of such
expenses. Landlord shall have the right, but not the obligation, at its
expense, to monitor and/or supervise the maintenance and repair of the Tenant's
AC Equipment, and Tenant shall, at its expense, follow all reasonable
instructions of Landlord relating to such maintenance and repair.
(b) All electricity used in connection with the operation of the
Tenant's AC Equipment shall be measured by the metering system described in
Article 16 hereof and shall be supplied with electricity in accordance with, and
subject to, all of the terms, covenants and conditions contained in said Article
16. The Tenant's AC Equipment shall be operated by Tenant at Tenant's sole cost
and expense. Tenant shall control the hours of operation of the Tenant's AC
Equipment, however, Landlord shall not be obligated to provide chilled water
other than during regular hours during the Cooling Season, and, furthermore,
Tenant, immediately upon Landlord's request in the case of an emergency and upon
prior reasonable (oral or written) notice in all other cases, shall stop service
of the Tenant's AC Equipment when necessary, by reason of accident or emergency
or when necessary to maintain, or make repairs to, the Building or any of the
Building's systems. Tenant shall operate the Tenant's AC Equipment in
compliance with all applicable laws, orders and regulations, including, but not
limited to, the New York State Energy Conservation Code, as the same may be from
time to time amended. Tenant shall indemnify and save Landlord harmless from
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and against all costs, expenses, fines, penalties, liabilities and damages which
may be imposed upon Landlord by reason of Tenant's (or its contractors,
subtenants, licensees, agents, servants, invitees or visitors) failure to comply
with the provisions of the preceding two sentences.
17.06 In no event may any window air-conditioning units be installed,
maintained or operated in any portion of the Demised Premises.
ARTICLE 18
Landlord's Other Services
18.01 Landlord shall provide public elevator service, passenger and
freight, by elevators serving the floor on which the Demised Premises are
situated during regular hours of business days with respect to the passenger
elevators, and during the hours (the "Freight Elevator Hours") of 8:00 A.M. and
6:00 P.M. (excluding a one (1) hour lunch break) on business days with respect
to the freight elevator, and shall have at least one passenger elevator subject
to call at all other times. Tenant acknowledges that Tenant's use of such
freight elevator is non-exclusive and subject to scheduling by Landlord.
Notwithstanding anything contained herein to the contrary, Tenant shall not be
obligated to pay for the first five (5) hours, in the aggregate, of after
Freight Elevator Hours use, which shall be utilized in thirty (30) minute
increments.
18.02 Landlord shall cause the Demised Premises to be cleaned in
accordance with the cleaning specifications annexed hereto as Exhibit F.
Tenant shall pay to Landlord within fifteen (15) days after demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its
employees or visitors, (ii) the use of portions of the Demised Premises for
preparation, serving or consumption of food or beverages which results in the
removal or other cleaning of "wet trash" and all trash from catered services,
and the use of portions of the Demised Premises for private lavatories or
toilets or other special purposes requiring greater or more difficult cleaning
work than office areas, (iii) unusual quantity of interior glass surfaces,
(iv) non-building standard materials or finishes installed by Tenant or at its
request, and (b) the removal from the Demised Premises and the Building of any
refuse and rubbish of Tenant in excess of that ordinarily accumulated daily in
the routine of business office occupancy. Landlord, its cleaning contractor
and their employees shall have after hours access to the Demised Premises and
the free use of light, power and water in the Demised Premises as reasonably
required for the purpose of cleaning the Demised Premises in accordance with
Landlord's obligations hereunder.
18.03 Landlord shall furnish adequate domestic hot and cold water to the
floor(s) on which the Demised Premises are located through the existing wet
columns, for drinking, pantry, lavatory and cleaning purposes. If Tenant uses
water for any other purpose Landlord, at Tenant's expense, may install meters
to measure only Tenant's consumption of water for such other purposes, as the
case may be. Tenant shall pay for the quantities of cold water and hot water
shown on such meters, at Landlord's cost thereof, within fifteen (15) days of
the rendition of Landlord's bills therefor.
18.04 Landlord, at its expense, shall maintain the listing on the
Building directory of the names of Tenant and its permitted assignees and
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sublessees, and the names of any of their respective officers and employees,
provided that the names so listed shall not (for so long as such directory
shall be a directory containing fixed lettering) take up more than Tenant's
Proportionate Share of the number of lines on the Building directory. In the
event Tenant shall require additional listing on the Building directory,
Landlord shall, to the extent space for such additional listing is available,
maintain such listings and Tenant shall pay to Landlord the then Building
standard charge for each such additional listing or any substitute listings.
If Landlord installs a computerized directory for general use, Tenant may have
Tenant's Proportionate Share of the listings thereon, at no charge.
18.05 Landlord reserves the right, without any liability to Tenant,
except as otherwise expressly provided in this lease, to stop operating any of
the heating, ventilating, air conditioning, electric, sanitary, elevator, or
other building systems serving the Demised Premises, and to stop the rendition
of any of the other services required of Landlord under this lease, whenever and
for so long as may be necessary, by reason of accidents, emergencies, strikes
or the making of repairs or changes which Landlord is required by this lease or
by law to make or in good faith deems necessary, by reason of difficulty in
securing proper supplies of fuel, steam, water, electricity, labor or supplies,
or by reason of any other cause beyond Landlord's reasonable control. Landlord
shall take reasonable steps to minimize any inconvenience to Tenant in
connection with such stoppage; provided, however, the foregoing shall not
require Landlord to perform any such repairs or changes on an overtime or
premium time basis except in the case of an Abatement Event or, in Landlord's
reasonable determination, actually threatens the health and safety of the
occupants of the Demised Premises.
18.06 (a) If (i) Landlord fails to provide any service or make any
repair which Landlord is expressly obligated to furnish or make under this
lease (other than whenever and for so long as may be necessary (except if
occurring for more than 365 consecutive days), by reason of accidents,
emergencies, strikes; or the making of or performing any repairs, alterations,
improvements, additions or changes which Landlord is required to make or perform
under this lease or by applicable laws and/or requirements of public authorities
or requirements of insurance bodies, now or hereafter in effect, or which in
good faith Landlord deems necessary; or by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor or supplies; or by
reason of any other cause beyond Landlord's reasonable control) (such failure
being hereinafter referred to as an "Abatement Event"), and such Abatement
Event renders untenantable (which word shall be deemed to include
"inaccessible") at least ten (10%) percent of the rentable area of the Demised
Premises (excluding any portion of the Demised Premises that (I) is then vacant
or (II) is occupied by any person or entity (other than the named Tenant) that
is obligated to continue to pay its rent or other use or occupancy fees to
Tenant regardless of the occurrence of the Abatement Event (such portion(s) of
the Demised Premises being hereinafter referred to as the "Excluded Portions"))
(Landlord and Tenant hereby agreeing that the Demised Premises (or the
applicable portion thereof) shall be deemed untenantable if the Abatement Event
reasonably prevents Tenant from using the Demised Premises for the uses
expressly permitted in this lease which may be due to the loss of electrical
service, heat during the Heating Season, and air-conditioning during the Cooling
Season so that the HVAC Specifications annexed hereto as Exhibit H are not
satisfied); (ii) Landlord receives notice from Tenant of the Abatement Event and
of the fact that Tenant is prevented from, and has actually ceased, so using at
least ten (10%) percent of the rentable area of the Demised Premises (excluding
any Excluded Portions) and has actually vacated at least ten (10%) percent of
56
the rentable area of the Demised Premises (excluding any Excluded Portions) and
of the specific portions of the Demised Premises that Tenant is prevented from,
and has actually ceased, so using and has vacated (such notice being hereinafter
referred to as the "Untenantability Notice"); (iii) for at least fifteen (15)
consecutive business days after Landlord's receipt of the Untenantability
Notice, and as a result of the Abatement Event, Tenant actually ceases using,
and continues not to use, and has vacated, such specific portions of the Demised
Premises and such specific portions comprise at least ten (10%) percent of the
rentable area of the Demised Premises and do not include any Excluded Portions;
(iv) the Abatement Event is not the result of any act or omission of Tenant,
or Tenant's employees, agents, contractors or invitees, or of any person or
entity claiming by, through or under any of the foregoing; and (v) no Event of
Default shall then exist, then, as Tenant's sole right and remedy, the rents
payable by Tenant under this lease shall be reduced as provided in subsection
(b) below. The Untenantability Notice, to be effective, shall specify (in
reasonable detail) the portion(s) of the Demised Premises (excluding any
rentable area of any Excluded Portions) which is/are untenantable as a result
of the Abatement Event and the manner and respects in which such portion is
untenantable. Notwithstanding anything in this Article which may be deemed to
the contrary, in determining which portions of the Demised Premises are
untenantable, Excluded Portions shall not be considered, except that the
Excluded Portions shall be included in determining the total rentable area of
the Demised Premises for the purposes of determining the fraction of the total
rentable area of the Demised Premises that is untenantable.
(b) Provided that the conditions described in clauses (i) through
(v) of subsection (a) above have been satisfied, during the period (the
"Abatement Period") commencing on the date (the "Abatement Commencement Date")
which is the sixteenth (16th) consecutive business day after Landlord's receipt
of the Untenantability Notice, and ending on the last day that the Demised
Premises (or the applicable portion thereof) is untenantable as a result of the
Abatement Event (such last day being hereinafter referred to as the "Abatement
Expiration Date"), the fixed rent, Tax Payment and Operating Expense Payment
payable by Tenant under this lease that are attributable to the Abatement Period
shall be reduced by an amount (the "Abatement Amount") equal to (i) the annual
fixed rent, Tax Payment and the Operating Expense Payment, per rentable square
foot, payable during, or attributable to, the Abatement Period, divided by (ii)
365, and multiplied by (iii) the number of days during the Abatement Period, and
multiplied further by (iv) the rentable area of the portion of the Demised
Premises that is so untenantable (as such area may change from time to time),
excluding the rentable area of any Excluded Portions. Notwithstanding anything
contained in this Article to the contrary, the Abatement Period shall end with
respect to the portion(s) of the Demised Premises in question, and the Abatement
Expiration Date shall be deemed to have occurred with respect to such portions,
on the date that either Tenant, or any person or entity claiming by, through or
under Tenant resumes using or occupying such portion(s) of the Demised Premises
for any reason (other than for inspection purposes, but including the
performance of any Changes), or on the date that the continuation of the
untenantability results from any act or omission of Tenant, or Tenant's
employees, agents, contractors or invitees, or any person or entity claiming
by, through or under any of the foregoing. In addition, and notwithstanding
anything contained in this Article to the contrary, the Abatement Period shall
end for all portions of the Demised Premises, and the Abatement Expiration Date
shall be deemed to have occurred for all portions of the Demised Premises, on
the date that an Event of Default occurs (the ending of the Abatement Period and
57
the occurrence of the Abatement Expiration Date, being in addition to all of
Landlord's other rights and remedies in respect of such default).
(c) Notwithstanding anything contained in this Article to the
contrary, the provisions of Article 22 of this lease shall supercede this
Article and shall govern, if the Abatement Event results from a fire or other
casualty. If it is not clear whether or not an Abatement Event results from
a fire or other casualty as opposed to any other cause, then the presumption
shall be that the Abatement Event resulted from a fire or other casualty.
(d) Notwithstanding anything contained in subsection (a) above
to the contrary, if within five (5) business days after Tenant gives the
Untenantability Notice to Landlord, Landlord notifies Tenant that Landlord
disputes Tenant's contention that at least ten (10%) percent of the rentable
area of the Demised Premises is untenantable, or that such untenantability
resulted from an Abatement Event, or that Tenant is entitled to the abatements
set forth in this Article, Tenant shall not be entitled to any reduction of
the annual fixed rent, the Tax Payment or the Operating Expense Payment until
such time as Landlord and Tenant agree, in writing, on such reduction, or, if
Landlord and Tenant fail to so agree within twenty (20) days after Landlord so
notifies Tenant, until such time as such dispute is settled by arbitration,
pursuant to subsection (e) below, in Tenant's favor, it being agreed that
Tenant shall have the right to submit such dispute to arbitration pursuant to
said subsection (e) within ninety (90) days after the last day of the twenty
(20) day period hereinbefore described. If Landlord and Tenant fail to so
agree and Tenant fails to submit such dispute to arbitration within the time
period hereinbefore set forth, such dispute shall be deemed resolved in
Landlord's favor, and Tenant shall not be entitled to any reduction or abatement
of annual fixed rent, Tax Payment or Operating Expense Payment. Furthermore,
if the annual fixed rent, the Tax Payment or the Operating Expense Payment is
reduced pursuant to subsections (a) and (b) above or this subsection (d), and
thereafter Landlord gives to Tenant a notice (the "Abatement Expiration Notice")
stating that less than ten (10%) percent of the rentable area of the Demised
Premises is then untenantable, or that one (1) or more of the portions of the
Demised Premises in question are not, or are no longer, untenantable, or that
the untenantability which entitled Tenant to such reduction of annual fixed rent
no longer results from the Abatement Event, then the Abatement Period (with
respect to the applicable portions of the Demised Premises) shall be deemed to
have ended on the date which is the earliest to occur of any of the foregoing
events, unless Tenant notifies Landlord that Tenant disputes Landlord's
contention that any of such events has occurred, and either (i) Landlord or
Tenant agree otherwise in writing, or (ii) if Landlord and Tenant fail so to
agree within twenty (20) days after Tenant so notifies Landlord, such dispute
is settled by arbitration, pursuant to said subsection (e), in Tenant's favor,
it being agreed that Tenant shall have the right to submit such dispute to
arbitration pursuant to said subsection (e) within ninety (90) days after the
last day of the twenty (20) day period hereinbefore described. If Landlord and
Tenant fail so to agree and Tenant fails to submit such dispute to arbitration
within the time period hereinbefore set forth, Tenant shall not be entitled to
any further reduction of annual fixed rent, the Tax Payment or the Operating
Expense Payment as provided in the Abatement Expiration Notice.
(e) Tenant may request arbitration of the matters described in
subsection (d) above, subject to the provisions of said subsection (d), by
notice from Tenant to Landlord, in accordance with the then prevailing rules of
the Expedited Procedures provisions (presently Rules 54 through 58, as same may
58
be amended from time to time) of the American Arbitration Association (or
successor thereto) in the City of New York. The decision of the arbitrator
shall be final and conclusive. Subject to the terms of the immediately
succeeding sentence, judgment on the decision rendered by the arbitrator may be
entered in any court having jurisdiction thereof. In rendering such decision,
the arbitrator shall not add to, subtract from, or otherwise modify the
provisions of this lease. The fees and expenses of such arbitration shall be
borne by the unsuccessful party. In any such arbitration, the prevailing party
shall be entitled to collect its costs, expenses and reasonable attorneys' fees
from the non-prevailing party.
(f) The rights and remedies of Tenant expressly set forth in this
Article shall be Tenant's only rights and remedies in respect of an Abatement
Event. In addition, Tenant may exercise the rights and remedies expressly set
forth in this Article only if the then Tenant is the Tenant named in this lease
or its permitted assignee and such Tenant or its permitted assignee then
occupies for its own account at least seventy-five (75%) percent of the rentable
area of the Demised Premises.
ARTICLE 19
Access, Changes In Building Facilities, Name
19.01 Except for the inside surfaces of all walls, windows and doors
bounding the Demised Premises, but including exterior building walls, core
corridor walls and doors and any core corridor entrances, and any space in or
adjacent to the Demised Premises used for shafts, stacks, pipes, conduits, fan
rooms, ducts, electric or other utilities, sinks, elevators, fire stairs or
other building facilities and systems, and the use thereof, as well as access
thereto through the Demised Premises for the purpose of operation, maintenance,
decoration and repair, are reserved to Landlord, except that Landlord shall
make available to Tenant, within horizontal and vertical shafts from the
basement service entrance of the Building to the Building's core on the fifth
(5th) floor of the Building, sufficient space so as to allow Tenant to install
in such shafts, on a non- exclusive basis, two (2) four inch conduits ("Tenant's
Conduits") to carry Tenant's telecommunications and data cabling.
19.02 Tenant shall permit Landlord to install, use, replace, repair, and
maintain pipes, ducts and conduits within the demising walls, bearing columns
and ceilings of the Demised Premises provided same are substantially concealed
within same and Landlord repairs any damage to the Demised Premised caused by
such installation, use, replacements, repair or maintenance. Landlord agrees
to use reasonable efforts to install, use, replace, repair and maintain such
pipe, ducts and conduits in such a manner so as to minimize interference with
Tenant's use of the Demised Premises.
19.03 Landlord or Landlord's agent shall have the right, upon reasonable
advance request (except in emergency as hereafter provided where no request need
be made) to enter and/or pass through the Demised Premises or any part thereof,
except for areas that Tenant has identified to Landlord in writing where money
or other valuables are kept (hereinafter referred to as "security areas") at
reasonable times during reasonable hours, (i) to examine the Demised Premises
and to show them to the fee owners, lessors of superior leases, holders of
superior mortgages, or prospective purchasers, mortgagees or lessees of the
Building as an entirety, and (ii) for the purpose of making such repairs or
changes in or to the Demised Premises or in or its facilities, as may be
59
provided for by this lease or as may be mutually agreed upon by the parties
or as Landlord may be required to make by law or in order to repair and maintain
said structure or its fixtures or facilities. In entering the Demised Premises
as aforesaid, Landlord agrees to use reasonable efforts to minimize interference
with Tenant's use of the Demised Premises. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be reasonably required for
such repairs, changes, repainting or maintenance to the Demised Premises only,
without liability to Tenant, but Landlord shall not unreasonably interfere with
Tenant's use of the Demised Premises. Landlord shall also have the right to
enter on and/or pass through the Demised Premises, or any part thereof, at such
times as such entry shall be required by circumstances of emergency affecting
the Demised Premises or the Building. In such circumstances of emergency, a
policeman or fireman shall accompany Landlord's entry into any security area
whenever possible and Landlord will give Tenant prompt notice after such entry.
19.04 During the period of twelve (12) months prior to the Expiration
Date Landlord may, upon reasonable advance notice, exhibit the Demised Premises
to prospective tenants.
19.05 Landlord reserves the right, at any time, without incurring any
liability to Tenant therefor, and without it constituting an actual or
constructive eviction, to make such changes in or to the Building and the
fixtures and equipment thereof, as well as in or to the size, composition,
number, arrangement or location of the public entrances, doors, doorways, halls,
passages, elevators, escalators and stairways and other public portions thereof,
as it may deem necessary or desirable, provided that (a) the services required
to be provided to Tenant pursuant to the provisions of this lease shall not be
adversely affected, and (b) the size of the Demised Premises shall not be
reduced and (c) Tenant shall, at all times, have ingress and egress to and from
the Building and the Demised Premises.
19.06 Landlord may adopt any name for the Building. Landlord reserves
the right to change the name or address of the Building at any time.
19.07 For the purposes of this Article 19, the term "Landlord" shall
include lessors of leases and the holders of mortgages to which this lease is
subject and subordinate as provided in Article 7.
19.08 Any reservation in this lease of a right by Landlord to enter upon
the Demised Premises and to make or perform any repairs, alterations or other
work in, to or about the Demised Premises which, in the first instance, is the
obligation of Tenant pursuant to this lease shall not be deemed to: (i) impose
any obligation on Landlord to do so, (ii) render Landlord liable (to Tenant or
any third party) for the failure to do so, or (iii) relieve Tenant from any
obligations to indemnify Landlord as otherwise provided elsewhere in this
lease.
19.09 Landlord agrees that, subject to the provisions of Section 21.03,
access to the Demised Premises and the Building will be available to Tenant 24
hours per day, 7 days per week, subject to Landlord's reasonable security
measures for the Building. Landlord intends to install a building-wide card
security system in the lobby of the Building. A lobby desk shall be located in
the Building lobby and shall be staffed 24 hours per day, 7 days per week.
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19.10 If Tenant desires internet service and/or other telecommunication
services, Tenant, at Tenant's sole cost and expense, shall directly arrange and
contract with an internet service provider (an "ISP") to provide internet
service to the Demised Premises and with a telecommunications provider (a
"Telecommunications Provider") to provide telecommunications service to the
Demised Premises. Only the Tenant's Conduits may be used for Tenant's internet
and telecommunications needs. Tenant's ISP and Telecommunications Provider
shall be subject to Landlord's prior written approval (which approval shall not
be unreasonably withheld, conditioned or delayed, except that if the proposed
ISP is the then ISP designated by Landlord for the Building or if the proposed
Telecommunications Provider is the then Telecommunications Provider designated
by Landlord for the Building (both of which providers, on the date of this
lease, are Cogent Communications and Eureka Broadband, a non-exclusive provider
of both such services in the Building), such approval shall be deemed given.
All wiring and related work required to be performed within the Demised Premises
to allow Tenant to access such internet service and telecommunications service
and all fees and charges charged by the ISP and the Telecommunications Provider
shall be paid directly to Tenant's ISP and Telecommunications Provider by
Tenant. Tenant's use of an ISP or a Telecommunications Provider (other than
the then ISP designated by Landlord for the Building or the then
Telecommunications Provider designated by Landlord for the Building) shall be
conditioned upon such ISP and/or Telecommunications Provider executing and
delivering to Landlord (or to Landlord's agent or designee) a license agreement,
in form and content reasonably satisfactory to Landlord in all respects, and
for Landlord (or such agent or designee) to charge such ISP and/or
Telecommunications Provider a fee for installing, operating and maintaining
equipment in the Building. Tenant acknowledges and agrees that such a condition
is reasonable and necessary for the orderly and proper operation and maintenance
of the Building and its systems.
19.11 If Tenant desires cable television service for the Demised Premises
and so notifies Landlord, then Landlord shall cooperate, at Tenant's sole cost
and expense, with Tenant, subject to any reasonable rules, regulations and/or
requirements adopted or imposed by Landlord, in connection with Tenant obtaining
cable television service for the Demised Premises. Only the Tenant's Conduits
may be used for Tenant's cable television needs. If Tenant desires cable
television service for the Demised Premises, Tenant, at Tenant's sole cost and
expense, shall directly arrange and contract with a cable television provider
(an "CTP") to provide cable television service to the Demised Premises.
Tenant's CTP shall be subject to Landlord's prior written approval (which
approval shall not be unreasonably withheld, conditioned or delayed, except that
if the proposed CTP is the then CTP designated by Landlord for the Building,
such approval shall be deemed given. All wiring and related work required to
be performed within the Demised Premises to allow Tenant to access such cable
television service shall be performed by or on behalf of Tenant in accordance
with, and subject to, the applicable provisions of this lease, including
Articles 13 and 14. All fees and charges charged by the CTP, shall be paid
directly to Tenant's CTP by Tenant. Tenant's use of a CTP (other than the then
CTP designated by Landlord for the Building) shall be conditioned upon such CTP
executing and delivering to Landlord (or to Landlord's agent or designee) a
license agreement, in form and content reasonably satisfactory to Landlord in
all respects, and for Landlord (or such agent or designee) to charge such CTP
a fee for installing, operating and maintaining equipment in the Building.
Tenant acknowledges and agrees that such a condition is reasonable and necessary
for the orderly and proper maintenance and operation of the Building and its
systems.
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ARTICLE 20
Notice Of Accidents
20.01 Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of (i) any accident in or about the Demised Premises for which Landlord
might be liable, (ii) all fires in the Demised Premises, (iii) all damages to or
defects in the Demised Premises, including the fixtures, equipment and
appurtenances thereof, for the repair of which Landlord might be responsible,
and (iv) all damage to or defects in any parts or appurtenances of the
Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator and other systems located in or passing through the Demised Premises
or any part thereof.
ARTICLE 21
Non-Liability And Indemnification
21.01 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant
or of any other person, irrespective of the cause of such injury, damage or
loss, it being understood that no property, other than such as might normally
be brought upon or kept in the Demised Premises as an incident to the reasonable
use of the Demised Premises for the purpose herein permitted, will be brought
upon or be kept in the Demised Premises except to the extent caused by the
intentionally wrongful acts or gross negligence of Landlord, its agents or
employees.
21.02 (a) To the extent that Landlord shall not be entitled to
reimbursement from insurance proceeds and subject to the provisions of Section
11.03 above, Tenant shall indemnify and save harmless Landlord and its agents
against and from (i) any and all claims (x) arising from (A) the conduct or
management of the Demised Premises or of any business therein, (B) any default
under, or breach of, any of the terms, covenants or conditions of this lease on
Tenant's part to observe, perform or comply with, or (C) any work done, or any
condition created (other than by Landlord) in or about the Demised Premises
during the term of this lease or during the period of time, if any, prior to
the Commencement Date that Tenant may have been given access to the Demised
Premises or during the period of time after the expiration of the term of this
lease that Tenant, or any person or entity claiming by, through or under Tenant,
remains in possession or occupancy of the Demised Premises or any portion
thereof, or (y) arising from and to the extent of any negligent or otherwise
wrongful act or omission of Tenant or any of its subtenants or licensees or its
or their employees, agents or contractors even if the claims described in (x)
or (y) above arise out of the concurrent negligence of Landlord, and (ii) all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant,
upon notice from Landlord, shall resist and defend such action or proceeding by
attorneys reasonably acceptable to Landlord, Landlord agreeing that the
attorneys for the insurance company providing Tenant's insurance are acceptable.
In no event shall Landlord be entitled to make a claim for consequential damages
under this subsection (a).
(b) To the extent that Tenant shall not be entitled to
reimbursement from insurance proceeds and subject to the provisions of Section
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11.03 above, Landlord shall indemnify and save harmless Tenant and its agents
against and from (i) any and all claims (x) arising from (A) the conduct or
management of the Building (other than the Demised Premises) or of any business
therein, or (B) any work or thing whatsoever done, or any condition created
(other than by Tenant) in or about the Building (other than the Demised
Premises) during the term of this lease, or (y) arising from any negligent or
otherwise wrongful act or omission of Landlord or any of its tenants or
licensees or its or their employees, agents or contractors if, and only if, the
claims described in (x) or (y) above arise out of the sole negligence, gross
negligence or willful misconduct of Landlord or its agents and employees, and
(ii) all reasonable costs, expenses and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon. In case any
action or proceeding be brought against Tenant by reason of any such claim,
Landlord, upon notice from Tenant, shall resist and defend such action or
proceeding by attorneys reasonably acceptable to Tenant, Tenant agreeing that
the attorneys for the insurance company providing Landlord's insurance are
acceptable. In no event shall Tenant be entitled to make a claim for
consequential damages under this subsection (b).
21.03 (a) Except as otherwise expressly provided in this lease, this
lease and the obligations of Tenant hereunder shall be in no wise affected,
impaired or excused because Landlord is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this lease by reason of strike, other
labor trouble, governmental pre-emption or priorities or other controls in
connection with a national or other public emergency or shortages of fuel,
supplies or labor resulting therefrom, acts of God or other like cause beyond
Landlord's reasonable control.
(b) Except as otherwise expressly provided in this lease, this
lease and the obligations of Landlord hereunder shall be in no wise affected,
impaired or excused because Tenant is unable to fulfill, or is delayed in
fulfilling any of its obligations under this lease (except for the obligations
to pay fixed rent and additional rent) by reason of strike, other labor trouble,
governmental pre-emption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor
resulting therefrom, acts of God or other like cause beyond Tenant's reasonable
control.
ARTICLE 22
Destruction Or Damage
22.01 If the Building or the Demised Premises shall be partially damaged
or partially destroyed by fire or other cause, the fixed rent and the additional
rent payable under Article 5 hereof shall be abated to the extent that the
Demised Premises shall have been rendered untenantable or inaccessible for the
period from the date of such untenantability or inaccessibility to the date the
damage shall be repaired or restored to the extent necessary to make the Demised
Premises tenantable and accessible. If the Demised Premises shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed
or rendered completely (which shall be deemed to include substantially
completely) untenantable or inaccessible on account of fire or other cause, the
fixed rent and the additional rent payable under Article 5 hereof shall abate as
of the date of the damage or destruction or untenantability, as the case may be,
through the date next preceding the date on which the repairs to the Building
and the Demised Premises having been substantially completed to the extent
necessary to make the Demised Premises tenantable and accessible, provided,
however, that if Tenant, or any person or entity claiming by, through or under
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Tenant, or any person or entity claiming by, through or under Tenant, occupies
a portion of the Demised Premises for the conduct of its business during the
period the restoration work is taking place and prior to the date that the same
are made tenantable, the fixed rent and such additional rent attributable to the
portions of the Demised Premises so occupied on a per rentable square foot
basis, shall be reinstated from and after the date of such occupancy.
22.02 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then, provided this lease
shall not have been terminated as in Section 22.03 below provided, Landlord
shall repair the damage with reasonable dispatch after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required
to repair or replace any of Tenant's Property nor to repair or restore any
Tenant's Work or Changes.
22.03 If the Building shall be totally damaged or destroyed by fire or
other cause, or if the Building shall be so damaged or destroyed by fire or
other cause (whether or not the Demised Premises are damaged or destroyed) as
to require a reasonably estimated expenditure of more than twenty-five (25%)
percent of the full insurable value of the Building immediately prior to the
casualty, 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
casualty. In case of any damage or destruction mentioned in this Article
Tenant may terminate this lease, by notice to Landlord, if Landlord has not
substantially completed the making of the required repairs within nine (9)
months after the date of such damage or destruction, which nine (9) month
period shall be extended for up to three (3) months if Landlord is delayed in
making such repairs by adjustment of insurance, labor trouble, governmental
controls, act of God, or any other cause beyond Landlord's reasonable control
(such nine (9) month period, as same may be so extended by up to an additional
three (3) months, being hereinafter referred to as the "Restoration Period").
For Tenant's notice of termination to be effective, it must be sent within
forty-five (45) days after the last day of the Restoration Period, TIME BEING
OF THE ESSENCE. If Tenant gives such notice of termination within such forty-
five (45) day period, the term of this lease shall expire as fully and
completely on the date which is thirty (30) days after the date on which Tenant
gives such notice to Landlord, as if such date were the Expiration Date and
Tenant shall forthwith quit, surrender and vacate the Demised Premises in
accordance with the applicable provisions of this lease, without prejudice,
however, to Landlord's rights and remedies against Tenant under the provisions
of this lease in effect prior to such termination, and any fixed rent or
additional rent owing shall be paid up to such date and any payments of fixed
rent or additional rent made by Tenant which were on account of any period
subsequent to such date shall promptly be returned to Tenant. In addition, if
any damage or destruction mentioned in this Article occur, and Landlord does
not elect to terminate this lease as provided in this Section 22.03, then,
provided Tenant has not elected to terminate this lease pursuant to clause (B)
below, within sixty (60) days after such fire or other cause, Landlord shall
deliver to Tenant a statement (the "Contractor's Statement") from a contractor,
construction manager, architect or engineer, reasonably selected by Landlord
which has been reviewed and/or approved by Landlord's insurance carrier and the
holder of the superior mortgage, that sets forth such contractor's, construction
manager's, architect's or engineer's good faith estimate as to when the repairs
described in Section 22.02 above will be substantially complete. The
Contractor's Statement shall be without any representation or warranty on the
part of, or recourse against, Landlord or the person or entity that actually
gives such statement, except for Tenant's right to terminate this lease as
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expressly hereinafter provided in the event that such statement is incorrect.
Notwithstanding anything contained in this Article 22 to the contrary, (A) if
such contractor, construction manager, architect or engineer reasonably
estimates that the repairs described in Section 22.02 above will be
substantially complete more than nine (9) months after the date of such damage
or destruction, or (B) if the Demised Premises shall be totally damaged or
destroyed by fire or other cause during the last eighteen (18) months of the
term of this lease, then, Tenant, as Tenant's sole right and remedy, may elect
to terminate this lease by written notice to Landlord (such notice being
hereinafter referred to as a "Tenant Article 22 Termination Notice") given
within forty-five (45) days after the date Tenant receives the Contractor's
Statement, in the case of clause (A), or within forty-five (45) days after the
date of the fire or other cause, in the case of clause (B), TIME BEING OF THE
ESSENCE WITH RESPECT TO ALL OF SUCH DATES, in which event, the term of this
lease shall expire as fully and completely on the date which is thirty (30)
days after the date on which Tenant gives Landlord the Tenant Article 22
Termination Notice, as if such date were the Expiration Date and Tenant shall
forthwith quit, surrender and vacate the Demised Premises in accordance with
the applicable provisions of this lease, without prejudice, however, to
Landlord's rights and remedies against Tenant under the provisions of this
lease in effect prior to such termination, and any fixed rent or additional
rent owing shall be paid up to such date and any payments of fixed rent or
additional rent made by Tenant which were on account of any period subsequent
to such date shall promptly be returned to Tenant. If Tenant fails to give
Landlord the Tenant Article 22 Termination Notice in the manner and in the time
period set forth above, then Tenant's right to terminate this lease shall be
null and void, and of no further force or effect, and this lease shall continue
in full force and effect, subject to the other provisions of this lease.
22.04 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.
22.05 Notwithstanding any of the foregoing provisions of this Article,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction of the Demised
Premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents or contractors,
then, without prejudice to any other remedies which may be available against
Tenant, there shall be no abatement of Tenant's rents, but the total amount of
such rents not abated (which would otherwise have been abated) shall not exceed
the amount of the uncollected insurance proceeds.
22.06 Landlord will not carry insurance of any kind on Tenant's Property,
Changes or Tenant's Work.
22.07 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises
by fire or other casualty, and Section 227 of the Real Property Law of the State
of New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
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ARTICLE 23
Eminent Domain
23.01 If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title in such taking (which date is
hereinafter also referred to as the "date of the taking"), and the rents shall
be prorated and adjusted as of such date.
23.02 If only a part of the Building shall be so taken, this lease shall
be unaffected by such taking, except that Tenant may elect to terminate this
lease in the event of a partial taking of fifty (50%) percent (or more) of the
rentable area of the Demised Premises if the remaining area of the Demised
Premises shall not be reasonably sufficient for Tenant to continue feasible
operation of its business. Tenant shall give notice of such election to
Landlord not later than thirty (30) days after (i) notice of such taking is
given by Landlord to Tenant, or (ii) the date of such taking, whichever occurs
sooner. Upon the giving of such notice by Tenant this lease shall terminate on
the date of such taking and the rents shall be prorated as of such termination
date. Upon such partial taking and this lease continuing in force as to any
part of the Demised Premises, the rents apportioned to the part taken shall be
prorated and adjusted as of the date of taking and from such date the fixed
rent for the Demised Premises and additional rent payable pursuant to Article
5 shall be appropriately adjusted according to the rentable area remaining.
23.03 Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Article without
deduction therefrom for any estate vested in Tenant by this lease and Tenant
shall receive no part of such award, except as hereinafter expressly provided
in this Article. Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award. Notwithstanding anything herein
to the contrary, Tenant may, at its sole cost and expense, make a claim with
the condemning authority for Tenant's moving expenses, the value of Tenant's
fixtures or Tenant's Changes which do not become part of the Building or
property of Landlord, provided however that Landlord's award is not thereby
reduced or otherwise adversely affected.
23.04 If the temporary use or occupancy of all or any part of the Demised
Premises shall be lawfully taken by condemnation or in any other manner for any
public or quasi-public use or purpose during the term of this lease, Tenant
shall be entitled, except as hereinafter set forth, to receive that portion of
the award for such taking which represents compensation for the use and
occupancy of the Demised Premises and, if so awarded, for the taking of 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 in full the fixed rent and additional rent when due. If the period of
temporary use or occupancy shall extend beyond the Expiration Date, that part
of the award which represents compensation for the use or occupancy of the
Demised Premises (or a part thereof) shall be divided between Landlord and
Tenant so that Tenant shall receive so much thereof as represents the period
prior to the Expiration Date and Landlord shall receive so much thereof as
represents the period subsequent to the Expiration Date. All moneys received
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by Tenant as, or as part of, an award for temporary use and occupancy for a
period beyond the date to which the rents hereunder have been paid by Tenant
shall be received, held and applied by Tenant as a trust fund for payment of
the rents falling due hereunder.
23.05 In the event of any taking of less than the whole of the Building
which does not result in a termination of this lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, and to the extent any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the Demised Premises to substantially a
building standard condition to the extent that the same may be feasible and so
as to constitute a complete and tenantable Building and Demised Premises. In
no event shall Tenant have any obligation to restore the Demised Premises in
the event of any taking of the whole or a portion of the Building.
23.06 Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article, then (i) if such compliance is the
obligation of Tenant under this lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this lease, the
fixed rent hereunder shall be reduced and additional rents under Article 5
shall be adjusted in the same manner as is provided in Section 23.02 according
to the reduction in rentable area of the Demised Premises resulting from such
taking.
23.07 Any dispute which may arise between the parties with respect to
the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 34.
ARTICLE 24
Surrender; Holdover
24.01 On the last day of the term of this lease, or upon any earlier
termination of this lease, or upon any re-entry in accordance with law by
Landlord upon the Demised Premises, Tenant shall quit and surrender the Demised
Premises to Landlord in good order, condition and repair, except for ordinary
wear and tear and damage for which Landlord is responsible to repair pursuant
to the provisions of this lease, and Tenant shall remove all of Tenant's
Property therefrom except as otherwise expressly provided in this lease and,
except as otherwise expressly provided in this lease, shall restore the Demised
Premises wherever such removal results in damage thereto.
24.02 (a) In the event this lease is not renewed or extended or a new
lease is not entered into between the parties, and if Tenant shall then hold
over after the expiration of the term of this lease, and if Landlord shall then
not proceed to remove Tenant from the Demised Premises in the manner permitted
by law (or shall not have given written notice to Tenant that Tenant must vacate
the Demised Premises) irrespective of whether or not Landlord accepts rent from
Tenant for a period beyond the Expiration Date, the parties hereby agree that
Tenant's occupancy of the Demised Premises after the expiration of the term
shall be under a month-to-month tenancy commencing on the first day after the
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expiration of the term, which tenancy shall be upon all of the terms set forth
in this lease except that Tenant shall pay on the first day of each month of
the holdover period as fixed rent, an amount equal to one and one-half (1 1/2)
times one-twelfth of the fixed rent and additional rent payable by Tenant during
the last year of the term of this lease (i.e., the year immediately prior to the
holdover period) for the first month (or any portion thereof) of such holdover
period and two (2) times one-twelfth of the fixed rent and additional rent
payable by Tenant during the last year of the term of this lease for the each
month (or portion thereof) thereafter. It is further stipulated and agreed that
if Landlord shall, at any time after the expiration of the original term or
after the expiration of any term created thereafter, proceed to remove Tenant
from the Demised Premises as a holdover, the fixed rent for the use and
occupancy of the Demised Premises during any holdover period shall be calculated
in the same manner as set forth above. In addition to the foregoing, but
subject to the provisions of subsection 30.02(b) below, Landlord shall be
entitled to recover from Tenant all actual out-of-pocket costs and expenses,
resulting from such holdover, including all reasonable attorneys' fees and
disbursements and court costs incurred or paid by Landlord.
(b) Notwithstanding anything to the contrary contained in this
lease, the acceptance of any rent paid by Tenant pursuant to subsection 24.02(a)
above shall not preclude Landlord from commencing and prosecuting a holdover or
summary eviction proceeding, and the preceding sentence shall be deemed to be
an "agreement expressly providing otherwise" within the meaning of Section
232-c of the Real Property Law of the State of New York.
(c) All damages to Landlord by reason of holding over by Tenant
may be the subject of a separate action and need not be asserted by Landlord in
any summary proceedings against Tenant. Tenant acknowledges that possession of
the Demised Premises must be surrendered to Landlord at the expiration or sooner
termination of the term of this lease. Tenant agrees to indemnify and save
Landlord harmless against all liabilities, costs, suits, demands, charges, and
expenses of any kind or nature, including reasonable attorneys' fees and
disbursements, resulting from a delay by Tenant in so surrendering the Demised
Premises, including, without limitation, any claims made by any succeeding
tenant founded on such delay, except that Landlord shall not be entitled to
make a claim for consequential damages under this Section 24.02 unless Tenant
remains in possession of the Demised Premises (or any portion thereof) for
more than four (4) months after the expiration of the term of this lease
(without taking into account any month-to-month tenancy that may be created
under this Section 24.02).
ARTICLE 25
Conditions Of Limitation
25.01 To the extent permitted by applicable law this lease and the term
and estate hereby granted are subject to the limitation that whenever Tenant
shall make an assignment of all or substantially all of the property of Tenant
for the benefit of creditors, or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed against Tenant under the
reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Act or
under the provisions of any law of like import, or whenever a permanent receiver
of Tenant or of or for the property of Tenant shall be appointed, then,
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Landlord, (a) at any time after receipt of notice of the occurrence of any such
event, or (b) if such event occurs without the acquiescence of Tenant, at any
time after the event continues unstayed for ninety (90) days, Landlord may give
Tenant a notice of intention to end the term of this lease 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 this lease and the term and estate hereby
granted, whether or not the term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 27.
25.02 This lease and the term and estate hereby granted are subject to
the further limitation that:
(a) if there is a failure to pay when due any rent, additional
rent or other payment payable by Tenant pursuant to any provision of this
lease, and the payment in question is not paid in full within three (3) business
days after Tenant is given a notice specifying such default; or
(b) if there is a failure to observe, perform or comply with any
term, covenant or condition contained in Section 7.04, Section 13.07 or Article
33 of this lease on Tenant's part to observe, perform or comply with, whether
by action or inaction, and such default continues and is not cured in full by
Tenant within seven (7) days after Tenant is given a notice specifying such
default; or
(c) if there is a failure to observe, perform or comply with any
term, covenant or condition contained in Article 19 of this lease on Tenant's
part to observe, perform or comply with, whether by action or inaction, and such
default continues and is not cured in full by Tenant within three (3) business
day after Tenant is given a notice specifying such default (or in the case such
default cannot with due diligence and using best efforts be cured within a
period of three (3) business days, where the continuance of such default for
more than three (3) business days will not (A) subject Landlord to the risk of
civil or criminal liability or default under, or termination of, any superior
lease or default under, or foreclosure of, any superior mortgage, (B) subject
the Building or the Land, or any parts thereof, to being condemned or vacated,
or (C) subject the Building or the Land, or any parts thereof, to any lien or
encumbrance or subject the certificate of occupancy for the Building to
suspension or revocation or threatened suspension or revocation, if Tenant
shall not, (x) within three (3) business days after Tenant is given a notice
specifying such default, duly institute within said three (3) business day
period, and thereafter diligently prosecute to completion, using Tenant's best
efforts, all steps necessary to cure such default, or (y) complete such cure
within such time after the date of the giving of such notice to Tenant as should
have been necessary to complete such cure had Tenant so duly instituted such
steps and thereafter diligently prosecuted to completion such cure using its
best efforts); or
(d) if (i) Tenant fails to provide or keep in force the insurance
required by this lease, at the times and for the durations specified in this
lease, or (ii) an Insurance Cancellation Notice is given to Landlord (whether
or not the effective date of the cancellation or modification referred to in
such Insurance Cancellation Notice of the insurance coverage that Tenant is
obligated to provide and keep in full force and effect has occurred), and
Landlord has not received either duplicate originals of the policies of
insurance required by this lease or binding certificates evidencing such
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insurance, all in the form and substance required by this lease, together with
evidence of payment for such policies, within five (5) days after notice is
given to Tenant of such failure subject to the provisions of Section 11.02 with
respect to the giving of the Insurance Cancellation Notice, as the case may be;
(e) if any event shall occur or any contingency shall arise
whereby this lease or the estate hereby granted or the unexpired balance of the
term hereof 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 9; or
(f) if Tenant shall vacate or abandon the Demised Premises
(unless as a result of a casualty); or
(g) (i) if there is a failure to observe, perform or comply with
any term, covenant or condition contained in this lease on Tenant's part to
observe, perform or comply with (other than those terms, covenants and
conditions contained in the provisions of this lease set forth in subsections
(a), (b), (c) and (d) above, and excluding those events described in subsections
(e) and (f)), whether by action or inaction, and such default continues and is
not cured in full by Tenant within fifteen (15) days after Tenant is given a
notice specifying such default, or (ii) in the case of a default which cannot
with due diligence and using best efforts be cured within a period of fifteen
(15) days, where the continuance of such default for more than fifteen (15) days
will not (A) subject Landlord to the risk of civil or criminal liability or
default under, or termination of, any superior lease or default under, or
foreclosure of, any superior mortgage, (B) subject the Building or the Land,
or any parts thereof, to being condemned or vacated, or (C) subject the Building
or the Land, or any parts thereof, to any lien or encumbrance or subject the
certificate of occupancy for the Building to suspension or revocation or
threatened suspension or revocation, if Tenant shall not, (x) within fifteen
(15) days after Tenant is given a notice specifying such default, duly institute
within said fifteen (15) day period, and thereafter diligently prosecute to
completion, using Tenant's best efforts, all steps necessary to cure such
default, or (y) complete such cure within such time after the date of the giving
of such notice to Tenant as should have been necessary to complete such cure had
Tenant so duly instituted such steps and thereafter diligently prosecuted to
completion such cure using its best efforts; or
(h) if there is a default under any term, covenant or condition
on Tenant's or any Tenant Party's part to observe, perform or comply with under
any other lease or occupancy agreement in the Building to which Tenant or a
Tenant Party is a party (either directly or by assignment), and such default
is not cured in full after the giving of any required notice and after the
expiration of any applicable cure period,
then in any of said cases set forth in the foregoing subsections (a), (b), (c),
(d), (e), (f), (g) and (h), or upon the occurrence of any other Event of
Default, Landlord may give to Tenant a notice of intention to end the term of
this lease, and on the fifth (5th) day after the date on which Landlord gives
such notice to Tenant, this lease and the term and estate hereby granted,
whether or not the term shall theretofore have commenced, shall terminate with
the same effect as if such fifth (5th) day were the Expiration Date, but Tenant
shall remain liable for damages as provided in Article 27.
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ARTICLE 26
Re-Entry By Landlord
26.01 If Tenant shall default in the payment of any installment of fixed
rent, or of any additional rent, on any date upon which the same ought to be
paid, and if such default shall continue for three (3) business days after
Landlord shall have given to Tenant a notice specifying such default, or if
this lease shall expire as in Article 25 provided, Landlord or Landlord's agents
and employees may immediately or at any time thereafter re-enter the Demised
Premises or any portion thereof, in accordance with law, in the name of the
whole, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises again as and of its first estate and interest therein. The word re-
enter, as herein used, is not restricted to its technical legal meaning. In the
event of any termination of this lease under the provisions of Article 25 or if
Landlord shall re-enter the Demised Premises under the provisions of this
Article 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 thereupon
pay to Landlord the fixed rent and additional rent payable by Tenant to Landlord
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 Landlord or Tenant
of any of their respective obligations under this lease, Tenant or Landlord, as
the case may be, shall also have the right of injunction. The special remedies
to which Landlord may resort hereunder are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which Landlord may
lawfully be entitled at any time and Landlord may invoke any remedy allowed at
law or in equity as if specific remedies were not 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, 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, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry and, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law and against all other
amounts which are then, or which may thereafter become, payable to Landlord.
Any portion of such moneys that remain after Landlord credits same as
hereinbefore provided shall promptly be returned to Tenant.
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
71
provision of law by reason of default hereunder on the part of Tenant (after
the giving of any required notice and the expiration of any applicable cure
period), Tenant shall pay to Landlord as damages, at the election of Landlord,
either:
(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, discounted to present value at the rate
of six (6%) percent per annum, of:
1. the aggregate of the fixed rent and the additional rent
payable hereunder which would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was payable for the year
immediately preceding such termination) 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, had this lease not so terminated
or had Landlord not so re-entered the Demised Premises; over
2. the aggregate rental value of the Demised Premises for
the same period; or
(b) sums equal to the fixed rent and the additional rent (as
above presumed) payable hereunder 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 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
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this lease;
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 to a credit in respect of any net rents from a reletting, except to
the extent that such net rents are actually received by Landlord. If the
Demised Premises or any part thereof should be relet in combination with other
space, then proper apportionment on a square foot basis (for equivalent space)
shall be made of the rent received from such reletting and of the expenses of
reletting.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the term of this lease, or any part thereof, 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.
27.02 Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord 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 of this lease would have expired if it had not been
72
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 liquidated damages
by reason of the termination of this lease or re-entry on 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 when, and governing
the proceedings in which, such damages are to be proved whether or not such
amount be greater, equal to, or less than any of the sums referred to in Section
27.01.
27.03 Subject to all of the applicable terms, covenants and conditions
contained in this lease, including, without limitation, this Article 27, if on
the date that this lease terminates under the provisions of Article 25, or on
the date Landlord re-enters the Demised Premises under the provisions of Article
26, or on the date 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, as the case may be, the then
Tenant is the Tenant named herein, Landlord agrees that it shall not arbitrarily
refuse to relet the Demised Premises (or portions thereof), provided that if
there shall then be other space available for leasing or occupancy in the
Building which is comparable (in Landlord's sole determination) to the Demised
Premises (or such portions) Landlord shall in no way be required to relet the
Demised Premises (or portions thereof) before it leases, or in lieu of leasing,
such other space. Nothing contained herein shall require or obligate Landlord,
or be deemed or construed to require or obligate Landlord, to re-let the Demised
Premises (or any such portion) at a rental which (in Landlord's sole
determination) is below the then fair market rental value for the Demised
Premises (or such portions) or on terms or conditions (including, without
limitation, the term of lease, the portions of the Demised Premises to be
leased, and any rent abatement, construction reimbursement or other concession
or incentive) which (in Landlord's sole determination) are not then commercially
reasonable or in Landlord's best interest, or to lease such space to a person or
entity which (in Landlord's sole determination) (a) is not in keeping with the
then standards of the Building, (b) proposes to use such space for purposes for
which Landlord does not want to lease such space, (c) will violate any negative
covenant or restriction contained in any other lease of space in the Building
or in any other agreement by which Landlord is bound or to which Landlord is
subject (such as a ground lease or mortgage), (d) is not a reputable person
of good character or does not have sufficient financial worth considering the
responsibilities involved, or otherwise is not commercially acceptable to
Landlord.
ARTICLE 28
Waiver
28.01 Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which 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 for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of this lease as herein provided.
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28.02 In the event that Tenant is in arrears in payment of fixed rent or
additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments of fixed rent to any arrears
of fixed rent and any payments of additional rent to any arrears of additional
rent made by Tenant to any items it sees fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items against
which any such payments shall be credited.
28.03 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, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
28.04 The provisions of Articles 17 and 18 shall be considered expressed
agreements governing the services to be furnished by Landlord, and Tenant agrees
that any laws and/or requirements of public authorities, now or hereafter in
force, shall have no application in connection with any enlargement of
Landlord's obligations with respect to such services unless Tenant agrees, in
writing, to pay to Landlord, as additional rent, Landlord's reasonable charges
for any additional services provided.
28.05 If, at any time during the term of this lease, any requirement of
public authority shall have the effect of limiting, for any period of time, the
amount of the rents payable by Tenant, or receivable by Landlord, under this
lease, and the maximum rents so permitted to be paid by Tenant, or received by
Landlord, hereunder shall be less than the rents herein reserved, then:
(a) throughout the period of limitation, Tenant shall remain
liable for the maximum amount of rents that is lawfully payable; and
(b) if and when the period of limitation ends, the requirement
of public authority imposing such limitation is repealed, or such limitation is
restrained or rendered unenforceable by any order or ruling of a court of
appropriate jurisdiction:
(i) to the extent that the same is not prohibited by any
requirement of public authority, Tenant shall pay to Landlord, on demand, all
amounts that would have been due from Tenant to Landlord during the period of
limitation, but that were not paid because of the requirements of public
authorities; and
(ii) thereafter, Tenant shall pay to Landlord all of the
rents reserved under this lease, all of which shall be calculated as if there
had been no intervening period of limitation.
ARTICLE 29
No Other Waivers Or Modifications
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,
74
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of 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. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this lease and is signed by both Landlord and Tenant.
29.02 The following specific provisions of this Section shall not be
deemed to limit the generality of any of the foregoing provisions of this
Article:
(a) no agreement to accept a surrender of all or any part of
the Demised Premises shall be valid unless in writing and signed by Landlord.
The delivery of keys to an employee of Landlord or of its agent shall not
operate as a termination of this lease or a surrender of the Demised Premises.
If Tenant shall at any time request Landlord to sublet the Demised Premises for
Tenant's account, Landlord or its agent is authorized to receive said keys for
such purposes without releasing Tenant from any of its obligations under this
lease, and Tenant hereby releases Landlord from any liability for loss or
damage to any of Tenant's property in connection with such subletting, except
to the extent such loss or damage results from the intentional wrongful act or
gross negligence of Landlord or its employees or agents.
(b) the receipt by Landlord or payment by Tenant of rent with
knowledge of breach of any obligation of this lease shall not be deemed a waiver
of such breach;
(c) no payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder 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.
ARTICLE 30
Curing Tenant's Defaults, Additional Rent
30.01 (a) If Tenant shall default in the performance of any of Tenant's
obligations under this lease, 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 (i) three (3)
business days from the date Landlord gives Tenant notice of intention so to do,
or (ii) the applicable grace period provided in Section 25.02 or elsewhere in
this lease for cure of such default, whichever occurs later.
(b) If Tenant shall fail to pay in full any fixed rent or
additional rent when first due under this lease (without taking into account
any cure period that may be applicable thereto) and such failure shall continue
for more than five (5) days after such payment was first due, then (i) Tenant
shall pay to Landlord as additional rent, upon Landlord's demand therefor, a
late charge equal to five (5%) percent of amount of the payment that is not
75
paid when so first due, except if such failure resulted from any of the
occurrences set forth in Section 21.03(b) of this lease, and (ii) in addition
to such late charge, Tenant shall pay to Landlord as additional rent, upon
Landlord's demand therefor, interest at a rate per annum equal to the lesser
of (A) three (3%) percent over the Prime Rate, and (B) the maximum rate of
interest that then may be charged to parties of the same legal capacity as
Tenant, which interest shall accrue and shall be computed from and after the
date on which any such payment was first due under this lease. Nothing herein
contained shall be intended to violate any applicable law, code or regulation
and in all instances all such late charges and rates of interest shall be
automatically reduced to any maximum applicable legal charge or rate. The
provisions of this Section are in addition to all other rights and remedies
available to Landlord for nonpayment of fixed rent or additional rent.
30.02 (a) 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 counsel fees, involved in collecting or endeavoring to collect the
fixed rent or additional rent or any part thereof or enforcing or endeavoring
to enforce any rights against Tenant, under or in connection with this lease, or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings, as well as bills for any
property, material, labor or services provided, furnished, or rendered, by
Landlord or at its instance to Tenant, may be sent by Landlord to Tenant
monthly, or immediately, at Landlord's option, and, shall be due and payable
in accordance with the terms of such bills.
(b) Notwithstanding anything contained in this lease to the
contrary, if Landlord shall make any reasonable out-of-pocket payments for court
costs and reasonable attorneys' fees in instituting or prosecuting or defending
any action, proceeding or arbitration or in the event Landlord shall make any
such expenditures in connection with any action or proceeding brought by Tenant
under this lease, then, provided that Landlord shall be the prevailing party
in any such action or proceeding, Tenant shall reimburse or pay Landlord for
such reasonable costs and fees actually paid by Landlord in connection with
such action, proceeding or arbitration.
(c) Notwithstanding anything contained in this lease to the
contrary, if Tenant shall make any reasonable out-of-pocket payments for court
costs and reasonable attorneys' fees in instituting or prosecuting or defending
any action or proceeding or in the event Tenant shall make any such expenditures
in connection with any action or proceeding brought by Landlord under this
lease, then, provided that Tenant shall be the prevailing party in any such
action, proceeding or arbitration, Landlord shall reimburse or pay Tenant for
such reasonable costs and fees actually paid by Tenant in connection with such
action, proceeding or arbitration.
(d) Notwithstanding anything to the contrary contained in
subsections (b) and (c) above and except as otherwise expressly provided in this
lease, to the extent that this lease provides for a mechanism to resolve
disputes (such as arbitration), or if either party is expressly permitted to
dispute a demand or determination hereunder, then such disputes shall not be
deemed a breach under this lease and the dispute mechanisms provided for in
this lease shall supercede subsections (b) and (c) above. Except as otherwise
expressly provided in this lease, in addition, in any provision of this lease
which provides for the payment of attorneys' fees or disbursements as a result
of one of the parties to this lease being in default hereunder, and the party
76
alleging such default institutes or prosecutes or defends any action or
proceeding in connection with such default, then the party otherwise entitled
to such attorneys' fees or disbursements shall not be entitled to same except
as otherwise provided in subsection (b) or (c) above.
ARTICLE 31
Broker
31.01 Tenant covenants, warrants and represents that it had no
conversations or other communications with any broker, finder or consultant
except Insignia/ESG, Inc., the rental agent for the Building, and Grubb & Ellis
New York, Inc. (collectively, the "Broker") in connection with the leasing of
the demised premises to Tenant and that, to Tenant's best knowledge, there were
no brokers or finders except the Broker instrumental in consummating this lease.
In addition, Tenant covenants, warrants and represents that it has not retained
any person as a broker, finder or consultant, whether on an exclusive or non-
exclusive basis, to locate space in Manhattan for lease by Tenant or any other
person other than Grubb & Ellis New York, Inc. Tenant agrees to hold Landlord
harmless against any claims for a brokerage commission or consultation fees
arising out of any conversations or negotiations had by Tenant with any brokers
or finders except for the Broker, including any person claiming to have been
retained by Tenant to locate space in Manhattan for lease by Tenant or any other
person, regardless of whether such person was actually retained by Tenant or
whether such person was in any way involved with this transaction.
31.02 Based upon the foregoing representation, Landlord has agreed to
pay, pursuant to separate agreements, a brokerage commission to the Broker.
31.03 Landlord covenants, warrants and represents that it had no
conversations or other communications with any broker, finder or consultant
(except the Broker) in connection with the leasing of the demised premises to
Tenant and that, to Landlord's best knowledge, there were no brokers or finders
except the Broker instrumental in consummating this lease. Landlord agrees to
hold Tenant harmless against any claims for a brokerage commission or
consultation fees arising out of any conversations or negotiations had by
Landlord with any brokers or finders, including the Broker.
ARTICLE 32
Notices
32.01 Except as otherwise expressly permitted in this lease, all notices,
demands, approvals, consents, requests and other communications (collectively,
"Notices") which under the terms of this lease, or under any statute, must or
may be given or made by the parties hereto, must be in writing (whether or not
so stated elsewhere in this lease), and must be made either (i) by personal
delivery, or (ii) by delivering such notice by a nationally recognized
commercial overnight courier ("next business day delivery"), which courier
provides for delivery with receipt guaranteed, addressed to each party as
follows:
If to Landlord: at the address set forth on the first page
of this lease
With a copy to: Greenberg Traurig, LLP
77
200 Park Avenue
New York, New York 10166
Attention: Barry E. Shimkin, Esq.
If to Tenant: Cache Inc.
1460 Broadway
New York, New York 10036
Attention: Tom Reinckens
prior to the Commencement Date,
and at the Demised Premises Attention Tom
Reinckens, after the Commencement Date
With a copy of
default notices and
termination notices
only to: Mark Edward Goldberg, Esq.
60 East 42nd Street
Suite 4511
New York, New York 10165
32.02 All Notices shall be deemed to have been delivered (i) if by
personal delivery as provided for in this Article, on the date of receipt or
rejection or (ii) if sent by commercial courier, on the date of receipt or
rejection. Either party may designate by notice in writing given in the manner
herein specified a new or other address to which such notice, demand, approval,
consent, request or other communication shall thereafter be so given or made.
Notwithstanding the foregoing all fixed rent and additional rent statements,
bills and invoices may be given by regular mail, hand-delivery or facsimile
machine and shall be deemed given upon receipt, and emergency repair notices
may be hand-delivered or sent via facsimile machine and shall be deemed given
upon receipt.
ARTICLE 33
Estoppel Certificate
33.01 Within fifteen (15) days after either party's request, the other
party shall execute and deliver to the requesting party a statement prepared by,
on or behalf of, the requesting party (i) 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) and whether any options granted to Tenant pursuant to the
provisions of this lease have been exercised, (ii) certifying the dates to
which the fixed rent and additional rent have been paid and the amounts thereof,
(iii) stating whether or not, to the best knowledge of the signer, the other
party is in default in performance of any of its obligations under this lease,
or if Tenant is the certifying party, whether Tenant has received a notice of
default from Landlord and, to the best of knowledge of the signer (who shall be
authorized by Tenant), whether Tenant is in default, and, if so, specifying
each such claimed default of which the signer may have knowledge, (iv) stating
whether Tenant has any rights to offsets or abatement of rent, (v) stating
78
whether Tenant has prepaid any rent for more than one month in advance, and (vi)
certifying such other information as the requesting party reasonably requests,
it being intended that any such statement delivered pursuant hereto may be
relied upon by others with whom the party requesting such certificate may be
dealing and their respective successors and/or assigns. Subject to the
provisions set forth in Section 25.02(-) of this lease breach of the foregoing
will constitute Tenant's acknowledgement which may be relied on by any person
holding or proposing to acquire an interest in the Building, this lease or any
superior mortgage, that this lease is unmodified and in full force and effect
and will constitute, as to any such person, a waiver of any defaults on
Landlord's part which may exist prior to the date of such request. The
foregoing shall not limit any other rights and remedies available to Landlord
for breach of this Article.
ARTICLE 34
Arbitration
34.01 Either party may request arbitration of any matter in dispute
wherein arbitration is expressly provided in this lease as the appropriate
remedy. The party requesting arbitration shall do so by giving notice to that
effect to the other party, and both parties shall promptly thereafter jointly
apply to the American Arbitration Association (or any organization successor
thereto) in the City and County of New York for the appointment of a single
arbitrator.
34.02 The arbitration shall be conducted in accordance with the then
prevailing rules of the American Arbitration Association (or any organization
successor thereto) in the City and County of New York. In rendering such
decision and award, the arbitrator shall not add to, subtract from or otherwise
modify the provisions of this lease.
34.03 If for any reason whatsoever a written decision and award of the
arbitrator shall not be rendered within ninety (90) days after the appointment
of such arbitrator, then at any time thereafter before such decision and award
shall have been rendered either party may apply to the Supreme Court of the
State of New York or to any other court having jurisdiction and exercising the
functions similar to those now exercised by such court, by action, proceeding
or otherwise (but not by a new arbitration proceeding) as may be proper to
determine the question in dispute consistently with the provisions of this
lease.
34.04 All the expenses of the arbitration shall be borne by the non-
prevailing party.
ARTICLE 35
No Other Representations, Construction, Governing Law, Consents
35.01 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 which may be made between the parties concurrently
with the execution and delivery of this lease and shall expressly refer to this
lease. This lease and said other written agreement(s) made concurrently herewith
are hereinafter referred to as the "lease documents". It is understood and
agreed that all understandings and agreements heretofore had between the parties
are merged in the lease documents, which alone fully and completely express
their agreements and that the same are entered into after full investigation,
79
neither party relying upon any statement or representation not embodied in the
lease documents, made by the other.
35.02 If any of the provisions of this lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this lease shall be valid and enforceable to the fullest extent
permitted by law. This lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
lease to be drafted.
35.03 This lease shall be governed in all respects by the laws of the
State of New York applicable to agreements made and wholly executed therein
without reference to conflicts of laws principles.
35.04 If Tenant shall request Landlord's consent or approval pursuant to
any of the provisions of this lease or otherwise, and Landlord shall fail or
refuse to give, or shall delay in giving such consent or approval, or shall
unreasonably condition its consent or approval, Tenant shall in no event make,
or be entitled to make, any claim for damages (nor shall Tenant assert, or
be entitled to assert, any such claim by way of defense, set-off, or
counterclaim) based upon any claim or assertion by Tenant that Landlord
unreasonably withheld or delayed its consent or approval, or that the conditions
thereof are unreasonable, and Tenant hereby waives any and all rights that it
may have, from whatever source derived, to make or assert any such claim.
Tenant's sole remedy for any such failure, refusal, or delay, or for any
unreasonable conditions, shall be an action for a declaratory judgment,
specific performance, or injunction, and such remedies shall be available only
in those instances where Landlord has expressly agreed in writing not to
unreasonably withhold, condition or delay its consent or approval or where, as
a matter of law, Landlord may not unreasonably withhold, condition or delay the
same. In addition, whenever in this lease Landlord is required to be reasonable
in the granting of any consent or approval or otherwise, Landlord shall not be
deemed to have been unreasonable in the refusal to give its consent or approval
or otherwise if: (a) Landlord is not permitted to do so under the terms of any
superior lease or superior mortgage or (b) the consent or approval of any
superior lessor or holder of superior mortgagee is required and has been denied.
Furthermore, any conditions of Landlord's consent or approval which are imposed
or required by a superior mortgage or the holder thereof, or by a superior lease
or the lessor thereof, shall be deemed reasonable.
35.05 Submission by Landlord of this lease for execution by Tenant shall
confer no rights nor impose any obligations on either party unless and until
both Landlord and Tenant shall have executed this lease and duplicate originals
thereof shall have been delivered to the respective parties.
35.06 If there shall be more than one person named as Tenant herein, then
all such persons shall be deemed to be joint tenants in the leasehold estate
demised hereby, with joint and several liability hereunder.
80
35.07 Without Landlord's prior written consent, Tenant may not record
this lease or a memorandum hereof.
ARTICLE 36
Parties Bound
36.01 The obligations of this lease shall bind and benefit the successors
and assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 9 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within
the meaning of this Article.
36.02 Tenant shall look only to Landlord's estate and property in the
Building (including proceeds of insurance and condemnation and rentals derived
therefrom) and, where expressly so provided in this lease, to offset against
the rents payable under this lease, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any default by Landlord hereunder,
and no other property or assets of such Landlord or any partner, member,
officer or director thereof, disclosed or undisclosed shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this lease, the relationship of Landlord and
Tenant hereunder or Tenant's use or occupancy of the Demised Premises.
ARTICLE 37
Certain Definitions And Construction
37.01 For the purposes of this lease and all agreements supplemental to
this lease, unless the context otherwise requires the definitions set forth in
Exhibit E annexed hereto shall be utilized.
37.02 The various terms which are bolded or underlined and defined in
other Articles of this lease or are defined in Exhibits annexed hereto, shall
have the meanings specified in such other Articles and such Exhibits for all
purposes of this lease and all agreements supplemental thereto, unless the
context shall otherwise require.
37.03 The captions and headings in this lease are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this lease or the intent of any provision hereof.
81
ARTICLE 38
Adjacent Excavation And Construction; Shoring; Vaults
38.01 If an excavation or other substructure work shall be made upon
land adjacent to the Demised Premises, or shall be authorized to be made,
Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the Demised Premises for the purpose of doing
such work as shall be necessary to preserve the wall of or the Building from
injury or damage and to support the same by proper foundations without any
claim for damages or indemnity against Landlord, or diminution or abatement of
rent.
38.02 No vaults, vault space or area, whether or not enclosed or covered,
not within the property line of the Building is leased hereunder, anything
contained in or indicated on any sketch, blue print or plan or anything
contained 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 such areas not within the property line of
the Building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or utility, 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, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
ARTICLE 39
Storage Space
39.01 (a) During the term of this lease, Tenant shall be entitled to
use the space (hereinafter referred to as the "Storage Space") located on a
portion of the twenty-second (22nd) floor of the Building as set forth on
Exhibit G annexed hereto and made a part hereof, which shall consist of
approximately 1,000 square feet.
(b) Tenant's use of the Storage Space shall be upon, and subject
to, all of the terms, covenants and conditions contained in this lease and
references to the Demised Premises in this lease shall, where the context
indicates, either be deemed to refer to the Storage Space or shall be deemed
to include the Storage Space in the definition of the Demised Premises, except
that:
(i) Section 2.01 shall be deemed amended with respect to
the Storage Space to allow Tenant's use thereof solely as storage space to be
used in conjunction with the business conducted in the Demised Premises and for
no other purposes. In no event shall any person physically occupy the Storage
Space.
(ii) Notwithstanding anything contained herein to the
contrary, Tenant acknowledges that it has made a full and complete inspection
of the Storage Space and is thoroughly familiar with the condition thereof and
Tenant agrees to take possession of the Storage Space in its "as is" condition,
the parties hereto agreeing that Landlord shall not be obligated to perform,
82
or to pay the cost and expense of performing, any work in the Storage Space to
prepare the same for Tenant's occupancy.
(iii) Subject to the provisions of Section 16.04, Landlord,
at its expense, shall provide electricity to the light fixture(s), if any,
presently existing in the Storage Space and Tenant shall not utilize any
equipment which consumes electricity in the Storage Space. The cost incurred
in connection with Tenant's use of the electricity shall be included in the
fixed rent provided below.
(iv) The following provisions of this lease shall not be
applicable to the Storage Space and shall be deemed deleted from the lease with
respect to the Storage Space:
(A) Articles 4, 5, 9 (except as set forth in
subsection (v) below), and 17;
(B) Sections 1.04, 1.09, 16.01-16.03, 16.07-16.08,
17.02-17.05 (except that minimal heat shall be provided through the Building
systems), 18.02-18.04, and 18.06.
(v) Notwithstanding anything in this lease to the
contrary, the Storage Space may not be sublet, either in whole or in part,
except in connection with a valid subletting of the Demised Premises in
accordance with the terms of this lease, and any right to use or occupy same
shall not be assigned except in connection with a valid assignment of this
lease in accordance with the terms of this lease, provided, however, that in
either such case and notwithstanding anything to the contrary, the provisions
of Article 9 of this lease shall be applicable to such assignment or subletting.
(c) Tenant shall pay to Landlord, on account of the Storage
Space, as additional rent, on the first day of each month during the term of
this lease the amount of $15,000.00 per annum ($1,250.00 per month) from the
Commencement Date through the day immediately preceding the fifth (5th)
anniversary of the Commencement Date and (ii) $18,000.00 per annum ($1,500.00
per month) from the fifth (5th) anniversary of the Commencement Date and
continuing thereafter throughout the remainder of the term of this lease
(except that Tenant shall pay, upon execution and delivery of this lease by
Tenant, the sum of $1,250.00, to be applied against the first monthly
installment of additional rent with respect to the Storage Space becoming due
under this lease.
(d) In connection with Tenant's use of the Storage Space, if
Tenant is moving any items of personal property or heavy object or performs or
causes any deliveries to and/or from the Storage Space that requires the use
of hand trucks or such other similar devices, then such moving into or out of
the Storage Space shall be solely by means of the Building freight elevator.
39.02 Landlord shall have the right, exercisable at any time during the
term of this lease, upon prior written notice to relocate the Storage Space to
any portion of the Building. Tenant acknowledges and agrees that the relocated
Storage Space may consist of more than one (1) location in the Building,
provided, however, that the aggregate of such relocated Storage Space shall
consist of approximately 1,000 square feet. Additionally, the relocated Storage
83
Space shall be demised by Landlord and shall be provided with minimal
electricity. Any relocation shall be accomplished in such a manner so as to
create the least practicable interference with Tenant's business operation.
Tenant agrees to cooperate with Landlord in the relocation so as to enable
Landlord to complete the relocation in a minimum amount of time and in a manner
that will minimize the interference with Tenant's business operation and shall
sign all applications and documents reasonably requested by Landlord and in
content reasonably acceptable to Tenant to effectuate such relocation. All
costs and expenses of this relocation shall be borne by Landlord.
[signatures follow on next page]
84
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this lease as
of the date first above written.
LANDLORD:
NEW 1440 BROADWAY PARTNERS LLC
By: /s/ Anthony Westreich
-------------------------
Name: ANTHONY WESTREICH
Title: PRESIDENT
TENANT:
CACHE INC.
By:/s/ Clifford R. Gray
--------------------------
Name: CLIFFORD R. GRAY
Title: VICE PRESIDENT
85
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 9th day of July, in the year 2003 before me, the undersigned, a
Notary Public in and for said State, personally appeared Clifford Gray,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Kathleen Matteotti
-------------------------
Notary Public
KATHLEEN MATTEOTTI
Notary Public, State of New York
No. 01MA6028593
Qulified in New York County
Commission Expires Aug. 02, 2005
86
--------------------
EXHIBIT A
DESCRIPTION
---------------------
ALL that certain plot, piece or parcel of land, situate, lying and being
in the Borough of Manhattan, County of New York, City and State of New York,
bounded and described as follows:
BEGINNING at a point on the northerly side of 40th Street distant 279 feet 6
inches westerly from the northwesterly corner of Avenue of the Americas
(formerly Sixth Avenue) and 40th Street;
RUNNING THENCE westerly along the northerly side of 40th street 203 feet 10-1/2
inches to the intersection of the easterly side of Broadway with the northerly
side of 40th Street;
RUNNING THENCE northerly along the easterly side of Broadway 128 feel 1-1/2
inches to the southerly line of Lot No. 191 on "Map of Property belonging to the
Corporation of the City of New York, situated in the vicinity of the
Distributing Reservoir," December, 1844 by Daniel Ewen, C.S., filed in the
Office of the Register of the County of New York;
THENCE easterly along the southerly line of said Lot 92 feel 8-1/2 inches to the
westerly line of Lot No. 189 on said Map;
THENCE southerly parallel with Avenue of the Americas and along the westerly
line of Lot No. 189 24 feet 8-1/4 inches to the center line of the block;
THENCE easterly along the same 59 feet 121-1/2 inches to the easterly side of
the premises on which the Hotel Vendome stands or formerly stood;
THENCE northerly along the same 98 feet 9 inched to the southerly side of 41st
Street at a point 173 feet 2-1/2 inches east of Broadway as measured along the
southerly side of 41st Street;
THENCE easterly along the southerly side of 41st Street 65 feet 1-1/2 inched to
the westerly line of Lot No. 184 on said map;
THENCE southerly along the same 98 feet 9 inches to the center line of the
block;
THENCE easterly along the center line of the block 20 feet 6 inches; and
THENCE southerly parallel with Avenue of the Americas 98 feet 9 inches to the
point or place of BEGINNING.
87
------------------
EXHIBIT B
FLOOR PLAN
------------------
(follows immediately on next page)
88
Floor Plan
1440 Broadway
Partial of 5th Floor
---------------------
EXHIBIT C
PRELIMINARY PLAN
---------------------
As used in this lease, "building standard" shall mean such materials, equipment,
fixtures and specifications as Landlord may elect to use from time to time as a
part of its standard construction substantially throughout the Building. Unless
otherwise indicated or provided in this Exhibit C, all materials, equipment and
fixtures to be provided as part of Landlord's Work, and all specifications for
Landlord's Work, shall be building standard.
SUSPENDED CEILING
* General/Office Area - 2' x 2' acoustical tile; Mfr: Armstrong Ceiling
Tiles; Tile: beveled regular Ultima series 1912, 2' x 2' x 3/4", grid
9/16', silhouette, slotted system; Color: White.
* Reception Area - 5/8" thick Gypsum board ceilings with Access Panels
where required.
* Maximize ceiling heights.
LIGHTING
* Fluorescent Light Fixtures: Lightolier 2'x2' (2) lamps; air supply/return,
heat extractor, one fixture per 80 sf (average) Model #NDPA2T9LS2U62X19-
DL8 or equal; Lamps (2) FSIT8U6-35; One (1) fixture per 80 sf (average).
Light Switches - Decora Series; Color: White.
* Exit Sign - Mfr: At-Lite Lighting Co., Type: Marathon Series; Color:
White with 8" red letters (note: arrows indicate direction of egress).
WALL FINISHES
* General Paint: Benjamin Moore, Ready Mix or equivalent; Color: White Dove
FLOOR FINISHES/BASES
* General Office Carpet: Alias Carpet Style - Stathmore or equivalent.
Color: Chantilly Beige #HMO6
* Vinyl Composition Tile: Mannington Essentials: Color: 127 Warm Beige;
12" x 12" tiles (for pantry only) or equal.
* Vinyl Base: Mfr; Roppe, P140 Fawn: Item: 4" or 6" high wide vinyl wall
base.
MILLWORK FINISHES
* Pantry Cabinets Plastic Laminate; Nevamar Arp Surface Smoky White Textured
or equal; Color: #7-27T; 6lf.
89
* Pantry Countertops Plastic Laminate; Nevarnar Arp Surface Wild Oats Matrix
Textured or equal; Color: MR-7-2T; 6lf.
PARTITIONS (No studs or framework is permitted to be attached in any way to duct
work, all framework must bridge around HVAC ductwork. Studs are to be doubled
up at doorways, with bracing to slab at top of doorway, and the mechanical room
demising partitions to be insulated for sound).
* Drywall Partitions: 2 1/2" metal studs @ 16" o.c. from floor slab to
underside of slab above with one (1) layer of 5/8" thick gypsum board on
each side to 6" above suspended ceiling (standard partition).
* Full Height one (1)-hour Fire-rated demising partition: 2 1/2" metal studs,
at 16"o.c., with one (1) layer of 5/8" thick fire code "C" gypsum board on
each side from floor slab to underside of slab above. Provide sound
attenuation blanket within partition and sealant at all joints and slabs as
required.
* Furring Partition: one (1) 5/8" metal stud, at 16" on center from slab to
underside of slab above with one (1) layer of 5/8" thick gypsum board, on
room side only to 6" above suspended ceiling (as needed).
* Drywall Lamination: Laminate all core walls and column surfaces with
5/8" thick gypsum board to 6" above suspended ceiling (as needed).
WINDOW TREATMENT
* Sheer Weave 2000, Mfr: Phifer or equal; Color: P04 white bone.
WET PANTRY/APPLIANCES
* Pantry/Sink: Mfr: Elkay, Model #GECR-12521 or equal; Drain - LK - with
stainer LK-8.
* Faucet: Mfr: Grohe Eureco -- Model#33 877 000, polished chrome finish or
equal.
* Full Height Refrigerator -- Mfr: General Electric; Model #TBX 14SAB;
Color: White on White or equal.
DOORS
* Entrance Doors: Hollow Metal Doors set on welded metal frames. 2 1/2 hour
rated. Doors and frames shall be labeled "Fire Rated Assembly".
* Private Office and Conference Doors: Hollow Metal Doors set on knock down
hollow metal frames.
* General Doors: Hollow metal doors set on knock down hollow metal frames.
CLOSETS
* Storage Closet with Adjustable Shelves, Provide 6 (six) 18" deep birch
veneer plywood shelves on heavy-duty standards and brackets. Shelves to
receive two (2) layers clear polyurethane finish, if applicable.
* Coat Closet. Hanger rod to be "Garcy" #88869 @1 15/16" diameter or
approved equal, chrome plated, mounted at 5'- 6" AFF and l' - 0" from
rear wall. Hat shelf to be l' - 6" deep x 3/4" thick birch veneer plywood
with hardwood edge and two (2) coats of clear polyurethane finish, mounted
90
at 5' - 10" AFF with 3/4 3/4" x 3/4 3/4" continuous aluminum angle at sides
and back.
HARDWARE
* Suite Entry Doors: Schlage Building Standard with "Primus" cylinder.
* Lock Sets: Sschlage Building Standard. Quantity: fifteen (15) offices.
* Passage Sets: Schlage Building Standard.
* Dummy sets: Schlage Building Standard.
* Threshold: Vinyl reducer strip. Color: Black.
* Flushbold: Mfr: Glynn Johnson, Item GJ-FB6W (applied on inactive leaf
whenever there are pair of entry doors), Finish: US4 (Satin Brass).
ELECTRICAL TELEPHONE DEVICES
A-Private Office (over 150 sf) - Quantity: Two (2) Offices:
- ------------------------------------------------------------
* One (1) Wall mounted quadruplex receptacle, Leviton Decora or approved
equal.
* Two (2) Wall mounted convenience duplex receptacles, Leviton Decora or
approved equal.
* Two (2) Wall mounted voice/data junction boxes with 3/4" diameter conduit
stub-up to 6" above hung ceiling.
B -Private Office (under 150 sf):
- ---------------------------------
* One (1) Wall mounted quadruplex receptacle, Leviton Decora or approved
equal.
* One (1) Wall mounted voice/data junction box with 3/4" diameter conduit
stub-up to 6" above hung ceiling.
Pantry:
- -------
* Two (2) Wall mounted 15A 120V separate circuit duplex receptacles,
Leviton Decora or approved equal (for microwave & refrigerator).
* Wall mounted Ground Fault Interrupt (GFI) convenience duplex receptacle,
Leviton Decora or approved equal.
Common/Open Area:
- -----------------
* Wall mounted convenience duplex receptacle per 225 sf, Leviton Decora or
approved equal.
General Notes:
- --------------
* Wall mounted 15A 120V quadruplex receptacles, Leviton Decora or approved
equal. Three (3) outlets per one (1) circuit,
* One (1) Wall mounted 20A 120V dedicated circuit single receptacle, Leviton
Decora or Architects approved equal. One (1) per 1000 sf, for copy machine.
* One (1) Wall mounted voice and/or data junction box with 3/4" diameter
empty conduit stub-up to 6" above hung ceiling. For fax machine.
91
HVAC:
- -----
* Furnish and install two (2) thirty (30) ton chilled water cooled fan
units for Building cooling with ventilation distribution as required,
including furnishing and installing diffusers, in accordance with the
specifications set forth on Exhibit H.
* Furnish and install perimeter convector covers (paint grade sheet
metal) at each radiator.
SPRINKLER:
- ---------
* Furnish and install building standard sprinklers in conformance with
all applicable codes.
92
-----------------------
EXHIBIT D
RULES AND REGULATIONS
-----------------------
1. The rights of tenants in the entrances, corridors and elevators of
the Building are limited to ingress to and egress from the tenants' premises for
the tenants and their employees, licensees and invitees, and no tenant shall
use, or permit the use of, the entrances, corridors, 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 entrances, corridors, elevators and other
facilities of the Building by 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,
entrances, corridors, elevators, fire exits or stairways of the Building. The
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. 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 Landlord or the tenant whose premises are to be entered
or not otherwise 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 at any time shall, in the judgment of
Landlord, 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. In case of invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the Building. The Landlord may
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 requirement shall
not impose any responsibility on Landlord for the protection of any tenant
against the removal of property from the premises of the tenant. The 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 tenant's premises
or the Building under the provisions of this rule. Canvassing, soliciting or
peddling in the Building is prohibited and every tenant shall co-operate
to prevent the same.
3. No tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, 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
competitively priced. Such services shall be furnished only at such hours, in
93
such places within the tenant's premises and under such reasonable regulations
as may be reasonably fixed by Landlord.
4. 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, except that the name of the tenant may be
displayed on the entrance door of the tenant's premises, and in the elevator
lobbies of the floors which are occupied entirely by any tenant, subject to the
approval of Landlord as to the size, color and style of such display. The
inscription of the name of the tenant on the door of the tenant's premises
shall be done by Landlord at the expense of the tenant. Listing of the name
of the tenant on the directory boards in the Building shall be done by Landlord
at its expense; any other listings shall be in the discretion of Landlord.
5. No awnings or other projections over or around the windows shall be
installed by any tenant, and only such window blinds as are supplied or
permitted by Landlord shall be used in a tenant's premises. Linoleum, tile or
other floor covering shall be laid in a tenant's premises only in a manner
approved by Landlord.
6. The 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 a 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 Tenant and in such manner as Landlord shall determine. The moving
of safes and other heavy objects shall take place only outside of ordinary
business hours upon previous notice to Landlord, and the persons employed to
move the same in and out of the Building shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master Rigger's license.
Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only in the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner reasonably approved by Landlord. Arrangements will
be made by Landlord with any tenant for moving large quantities of furniture
and equipment into or out of the building.
7. No machines or mechanical equipment of any kind, other than
typewriters and other ordinary portable business and office machines and
equipment (such as computers, copiers, facsimile machines, shredders and
refrigerators), 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.
8. No noise, including the playing of any musical instruments, radio or
television, which, in reasonable the judgment of Landlord, might disturb other
tenants in the Building, shall be made or permitted by any tenant, and no
cooking (as opposed to micro waving or re-heating) shall be done in the tenant's
94
premises, except as expressly approved by Landlord. 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
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. No dangerous,
inflammable, combustible or explosive object or material shall be brought into
the Building by any tenant or with the permission of any tenant.
9. No acids, vapors, paper towels 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.
10. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in any tenant's premises and no lock on any door therein
shall be changed or altered in any respect. Additional keys for a tenant's
premises and toilet rooms shall be procured only from Landlord, which may make
a reasonable charge therefor. Upon the termination of a tenant's lease, all
keys of the tenant's premises and toilet rooms shall be delivered to Landlord.
11. 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.
12. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building. Additionally, hand trucks, dollies, mail courts,
bins and other similar devices are prohibited from being used in the passenger
elevators and the main lobby of the Building.
13. All windows in each tenant's premises shall be kept closed and all
blinds therein, if any, above the ground floor shall be lowered when and 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.
14. 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 tenant. The 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.
95
-------------------
EXHIBIT E
DEFINITIONS
-------------------
(a) The term mortgage shall include an indenture of mortgage and deed
--------
of trust to a trustee to secure an issue of bonds, and the term mortgagee shall
include such a trustee.
(b) The terms include, including and such as shall each be construed as
------------------ -------
if followed by the phrase "without being limited to".
(c) The term obligations of this lease, and words of like import, shall
-------------------------
mean the covenants to pay rent and additional rent under this lease and all of
the other covenants and conditions contained in this lease. Any provision in
this lease that one party or the other or both shall do or not do or shall
cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be. In addition, all of the covenants of
Tenant under this lease, whether expressed or implied, shall be deemed and
construed to be "conditions" as well as "covenants" as though the words
specifically expressing or implying covenants and conditions were used in each
separate instance.
(d) The term Tenant's obligations hereunder, and words of like import,
------------------------------
and the term Landlord's obligations hereunder, and words of like import, shall
--------------------------------
mean the obligations of this lease which are to be performed or observed by
Tenant, or by Landlord, as the case may be. Reference to performance of either
party's obligations under this lease shall be construed as "performance and
observance".
(e) Reference to Tenant being or not being in default hereunder or in
-------------------- --
default under this lease, or words of like import, shall mean that Tenant is in
- ------------------------
or is not in, as the case may be, default in the observance or performance of,
or compliance with, one or more of the terms, covenants, obligations or
conditions on Tenant's part to observe, perform or comply with under this lease,
or that a condition of the character described in Section 25.01 has occurred and
continues or has not occurred or does not continue, as the case may be.
(f) References in this lease to Landlord having no liability to Tenant
------------
or to any other person or being without liability to Tenant or to any other
-----------------
person, or words of like import, shall mean that Tenant is not entitled to
terminate this lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to claim or receive
damages of any kind (including consequential damages) or to be relieved in any
manner of any of its other obligations hereunder except as otherwise
specifically set forth in this lease, or to be compensated for loss or injury
suffered or to enforce any other kind of liability whatsoever against Landlord
under or with respect to this lease or with respect to Tenant's use or occupancy
of the Demised Premises.
96
(g) The term laws and/or requirements of public authorities and words of
----------------------------------------------
like import shall mean laws and ordinances of any or all of the Federal, state,
city, county and borough governments and rules, regulations, orders and/or
directives of any or all departments, subdivisions, bureaus, agencies or offices
thereof, or of any other governmental, public or quasi-public authorities,
having jurisdiction in the premises, and/or the direction of any public
officer pursuant to law.
(h) The term requirements of insurance bodies and words of like import
--------------------------------
shall mean rules, regulations, orders and other requirements of the New York
Board of Fire Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(i) The term repair shall be deemed to include restoration and
------
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(j) Reference to termination of this lease includes expiration or
-------------------------
earlier termination of the term of this lease or cancellation of this lease
pursuant to any of the provisions of this lease or to law. Upon a termination
of this lease, the term and estate granted by this lease shall end at 5:00 p.m.
of the date of termination as if such date were the date of expiration of the
term of this lease and neither party shall have any further obligation or
liability to the other after such termination (i) except as shall be expressly
provided for in this lease, or (ii) except for such obligation as by its nature
or under the circumstances can only be, or by the provisions of this lease, may
be, performed after such termination, and, in any event, unless expressly
otherwise provided in this lease, any liability for a payment which shall have
accrued to or with respect to any period ending at the time of termination shall
survive the termination of this lease.
(k) The term in full force and effect when herein used in reference to
------------------------
this lease as a condition to the existence or exercise of a right on the part of
Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of Tenant exists, and no
event has occurred which has continued to exist for such period of time (after
the notice, if any, required by this lease), as would entitle Landlord to
terminate this lease or to dispossess Tenant.
(l) The term Tenant shall mean Tenant herein named or any assignee or
------
other successor in interest (immediate or remote) of Tenant herein named, while
such Tenant or such assignee or other successor in interest, as the case may be,
is in possession of the Demised Premises as owner of Tenant's estate and
interest granted by this lease and also, if Tenant is not an individual or a
corporation, all of the persons, firms and corporations then comprising Tenant.
(m) The term Tenant Party shall mean and include Tenant and all persons
------------
claiming by, through and under Tenant, including subtenants, licensees and
concessionaires of any portion of the Demised Premises, and the employees,
invitees, agents and contractors of Tenant or of any such subtenants, licensees
or concessionaires.
(n) The term Prime Rate shall mean shall mean, on any particular date, a
----------
rate per annum equal to the rate of interest published in The Wall Street
97
Journal as the "prime rate," as in effect on such day, with any change in the
"Prime Rate" resulting from a change in said prime rate to be effective as of
the date of the relevant change in said prime rate; provided, however, that if
more than one prime rate is published in The Wall Street Journal for a day, the
average of the prime rates shall be used; provided, further, however, that the
prime rate (or the average of the prime rates) will be rounded up to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%. In the event that The Wall Street Journal ceases or temporarily interrupts
publication (or publication of a "prime rate"), then the Prime Rate shall mean
the daily average prime rate published in another business newspaper, or
business section of a newspaper, of national standing chosen by Landlord. If
The Wall Street Journal resumes publication, the substitute index will
immediately be replaced by the prime rate published in The Wall Street Journal.
(o) The term Event of Default shall mean a default under any of the
----------------
terms, covenants or conditions of this lease on Tenant's part to observe,
perform or comply with, that remains or remained uncured after the giving of any
required notice to Tenant and the expiration of any applicable cure period, or
any of the events described in Section 25.01 of this lease, or any other event
or occurrence designated in this lease as an "Event of Default."
(p) Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender.
(q) The rule of ejusdem generis shall not be applicable to limit a
---------------
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
(r) All references in this lease to numbered Articles, numbered Sections
and lettered Exhibits are references to Articles and Sections of this lease, and
Exhibits annexed to (and thereby made part of) this lease, as the case may be,
unless expressly otherwise designated in the context.
(s) The terms person and persons, as used in this Lease, shall mean and
------ -------
include natural persons, firms, corporations, partnerships, joint ventures,
limited liability partnerships, limited liability companies, associations and
any other private or public entities, including any government or political
subdivision or agency, department or instrumentality thereof.
98
-------------------------
EXHIBIT F
CLEANING SPECIFICATIONS
-------------------------
A) GENERAL OFFICE CLEANING - NIGHTLY
* Sweep, using Landlord approved dustdown preparation, all stone,
ceramic tile, marble terrazzo, asphalt tile, linoleum, rubber, vinyl
and other types of flooring.
* Carpet sweep all carpets and rugs four (4) times per week but only
where reasonable access is provided.
* Vacuum clean all carpets and rugs once (1) per week.
* Sweep all private stairways and keep in clean condition.
* Empty and clean all wastepaper baskets, ashtrays and receptacles; damp
dust as necessary.
* Remove all ordinary dry paper and tenant rubbish to designated areas.
Excluded are wet trash in pantry or cafeteria area, bulk and special
materials, furniture, etc.
* Dust all furniture and windowsills.
* Clean all glass furniture tops.
* Dust all chair rails, trim, partitions and baseboards.
* Wash clean all water fountains.
* Remove finger marks and smudges from walls, doors, light switch plates
once (1) per week.
* Wash locker and slop sink rooms.
B) LAVATORIES - NIGHTLY (EXCLUDING PRIVATE & EXECUTIVE LAVATORIES)
* Sweep and wash all flooring.
* Clean and polish all mirrors, powder shelves and bright work, including
flushometers, piping, toilet seat hinges.
99
* Wash and disinfect all basins, bowls and urinals.
* Wash and sanitize both sides of all toilet seats; clean underside of
fixtures.
* Dust, spot clean, or wash all partitions, tile walls, dispensers and
receptacles.
* Empty and clean paper towel and sanitary disposal receptacles.
* Fill toilet tissue holders, soap dispensers and paper towel dispensers.
Toilet tissue, paper towels and soap furnished by Landlord at its
expense.
* Remove all wastepaper and refuse to designated areas.
C) LAVATORIES - PERIODIC CLEANING (EXCLUDING PRIVATE & EXECUTIVE LAVATORIES)
* Machine scrub flooring once per month.
* Wash all partitions, tile walls and enamel surfaces once per month.
* Clean air grilles once (1) per month.
* Dust exterior of light fixtures once (1) per month.
D) SCHEDULE OF CLEANING
* Upon completion of the nightly chores, all lights shall be turned off,
windows closed, doors locked and offices left in a neat and orderly
condition.
* All day, nightly and periodic cleaning services as listed in this
Exhibit F, to be done on business day only.
* The exterior windows of the Demised Premises will be cleaned inside
and out four (4) times per year, weather permitting.
* High dust all pictures, frames, charts, graphs, and panel wall hangings
not reached in nightly office cleaning four (4) times per year.
* High dust all vertical surfaces such as walls, partitions, ventilating
louvers, and surfaces not reached in nightly office cleaning four (4)
times per year.
100
------------------------
EXHIBIT G
STORAGE SPACE FLOOR PLAN
------------------------
(follows immediately on next page)
101
Floor Plan
1440 Broadway
Partial of 22nd Floor
-------------------
EXHIBIT H
HVAC SPECIFICATIONS
-------------------
The existing Building HV system and AC system has the following
capabilities:
* The base Building HV system and AC system can maintain indoor design
conditions with an internal heat load of 4 watts per usable square foot
demand due to power and lighting:
Winter - With outside conditions of 5 Deg. F. (Dry Bulb or "DB") and
15 MPH wind velocity.
Winter - With inside conditions of 70 Deg. F. (DB), no control of
humidity.
Summer - With outside conditions of 92 Deg. F. (DB) and 74 Deg.
(Wet Bulb), maintain an inside condition of 78 Deg. F. and 50% RH.
Summer - With inside conditions of 76 Deg. F. (DB) and a maximum of
50% RH, no control of humidity.
* Tenant shall close window blinds to minimize heat load from sunlight.
102
EXHIBIT 10.7 STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
----------------------
STOCK OPTION AGREEMENT dated as of _____________ between Cache, Inc. (The
"Company") and ____________(the "Employee"), an employee of the Company.
The Employee is hereby granted (i) an option (the "Incentive Option") to
purchase from the Company ______ shares of the Company's common stock, par value
$.01 per share (the "Common Stock"), with the purchase price per share being
_______, and (ii) an option (the "Non-Qualified Option") to purchase from
the Company N/A shares of the Company's Common Stock, with the purchase price
per share being $N/A. The Incentive Option and the Non-Qualified Option are
collectively referred to herein as the "Option").
The Option may be exercised in whole or in part to the extent permitted
under paragraph 2 of the Terms and Conditions set forth below and shall expire
_____________ or, if the Employee's employment is terminated for any reason
prior to such date, on such other date determined in accordance with paragraph
6 of the Terms and Conditions below (the "Expiration Date").
The Non-Qualified Option is not qualified for "incentive stock option"
treatment under the Internal Revenue Code of 1986, as amended (the "Code"). The
Incentive Option is intended to be an "incentive stock option" within the
meaning of Section 422 of the Code and shall be construed and interpreted in
accordance with such intention. To the extent that the aggregate fair market
value of Common Stock to which Incentive Options granted to the Employee are
exercisable for the first time by the Employee during any calendar year (whether
under the terms of the Plan or any other stock option plan of the Company)
exceeds $100,000, the portion of such Incentive Option relating to excess shall
be treated as a non-qualified stock option.
The Employee understands and acknowledges that the Option is subject to
the Terms and Conditions of this agreement as set forth below.
TERMS AND CONDITIONS
--------------------
The following are Terms and Conditions of the Option in effect at the date
hereof. These Terms and Conditions relating to the Option may be modified by
the Company in certain circumstances.
1. The Employee is hereby granted each of the Incentive Option and the
Non-Qualified Option, subject to the condition set forth in the legend on the
first page hereof, for the purchase from the Company of the number of shares of
Common Stock of the Company's 2003 Stock Option and Performance Incentive Plan
as it may be amended from time to time (the "Plan"), subject to and under the
terms and conditions set forth in this agreement and the Plan.
2. The Option granted hereby becomes exercisable on _________________.
However, the Option may become exercisable earlier at the maximum rate of 25
percent per year for the periods ended December 31, 200_, December 31, 200_,
December 31, 200_ and December 31, 200_, to the extent the Company's earnings
plan, as approved by the Committee, is achieved, based on the following sliding
scale:
- ------------------------------------ ---------------------------
Percentage of Option Which
Percentage of Plan Earnings Achieved Will Become Exercisable
- ------------------------------------ ---------------------------
Greater than or equal to 90% 25%
- ------------------------------------ ---------------------------
Greater than or equal to 75%
but less than 90% 20%
- ------------------------------------ ---------------------------
Greater than or equal to 60%
but less than 75% 15%
- ------------------------------------ ---------------------------
Less than 60% 0%
- ------------------------------------ ---------------------------
3. The Option may be exercised, to the extent permitted under paragraph
2 above, in whole or in part. Common Stock purchased upon the exercise of the
Option shall be paid for in full at the time of purchase. Such payment shall be
made in cash or, in the discretion of the Compensation and Plan Administration
Committee of the Company's Board of Directors (the "Committee"), through
delivery of shares of Common Stock, installment payments under the Employee's
promissory note or a combination of cash, Common Stock and/or installment
payments, in accordance with procedures to be established by the Committee. Any
shares so delivered shall be valued at their Market Price on the date of
exercise.
-2-
Upon receipt of notice of exercise and payment in accordance with
procedures to be established by the Committee, the Company or its agent shall
deliver to the person exercising the Option (or his or her designee) a
certificate for such shares. It shall be a condition to the Company's
obligation to issue Common Stock upon exercise of the Option, or to subsequently
transfer such Common Stock, that the Employee pay, or make provisions
satisfactory to the Company for the payment of, any taxes which the Company is
obligated to collect with respect to this issue or transfer of such Common
Stock.
4. Subject to the terms of paragraph 6 of this Agreement, the Option
may be exercised, to the extent permitted under paragraph 2 above, in whole or
in part only until 5:00 p.m. New York City time on the Expiration Date and only
if the Employee is continuously employed by the Company or a subsidiary of the
Company ("Subsidiary") through any applicable Trigger Date or, to the extent
no Trigger Date has occurred, the Exercise Date.
5. The Option shall not be assignable or transferable by the Employee
except by will or by laws of descent and distribution, unless the prior written
consent of the Committee is given. During the life of the Employee, the Option
shall be exercisable by the Employee only.
6. The Option shall terminate after 30 days following termination of
employment of the Employee with the Company or a Subsidiary, unless such
termination of employment occurs by reason of (i) Disability (as hereinafter
defined), (ii) Retirement (as hereinafter defined), (iii) Death, or (iv) a
Special Event (as hereinafter defined), provided, in the case of a Special
Event, the Committee shall have modified the Option to remain exercisable as
provided below. The Option shall not be affected by any change of employment
as long as the Employee continues to be employed by either the Company or a
Subsidiary. Nothing in the Plan or in this Agreement shall interfere in any
way with the right of the Company or any Subsidiary or interfere in any way
with the right of the Company or any Subsidiary to terminate employment of the
Employee at any anytime.
(a) In the event of Disability of the Employee, whether or not the
Option is otherwise exercisable on the date of Disability, the Option shall be
exercisable in full at anytime until the Expiration Date, at which time the
Option shall terminate. "Disability" shall mean any termination of employment
with the Company or a Subsidiary because of a long-term or total disability, as
determined by the Committee in its sole discretion. The decision of the
Committee shall be final and conclusive.
-3-
(b) In the event of Retirement of the Employee, the Option shall
remain exercisable only to the extent it is exercisable on the date of
Retirement, until the Expiration Date, at which time the Option shall terminate.
"Retirement" shall mean any termination of employment with the Company or a
Subsidiary because of a long-term or total disability, as determined by the
Committee in its sole discretion. The decision of the Committee shall be final
and conclusive.
(c) In the event of the death of the Employee while employed by the
Company or any Subsidiary, if such death occurs before the Option is exercised,
the Option, whether or not otherwise exercisable on the date of death, shall
be exercisable in full by the beneficiary designated by the Employee for such
purpose (the "Designated Beneficiary") or if no Designated Beneficiary shall be
appointed or if the Designated Beneficiary shall predecease the Employee, by the
Employee's personal representatives, heirs or legatees at any time within three
(3) years from the date of death, at which time the Option shall terminate.
(d) In the case of a Special Event resulting in the termination of
the Employee, the Committee in its sole discretion may elect to modify the
Option, whether or not exercisable on the exercisable for the term and in the
manner specified therein or for such other term and subject to such other
provisions and conditions (including, without limitation, acceleration of the
Exercise Date or modification of the conditions causing a Trigger Date) as the
Committee shall specify. The Committee shall have the sole discretion to
determine the employees to whom and in the manner in which any such modification
shall be made. If the Committee does not elect to modify the Option, then the
Option may be exercised only if exercisable at the date of termination in
accordance with the first sentence of this paragraph 6.
A "Special Event" shall mean (i) the sale or other disposition of a
subsidiary or division of the Company; (ii) the closing or discontinuation of
a specific operation of the Company or any subsidiary; (iii) the elimination of
job categories; or (iv) a limited program of terminations in connection with a
personnel reorganization or restructuring of the Company or any Subsidiary
scheduled to be completed on a date certain, provided, however, that only those
employees who meet the terms and conditions as established by the Board or the
Committee in its discretion shall be eligible to receive accelerated vesting of
Options.
(e) The Committee may, in its sole discretion, cause the Option to be
forfeited upon the Employee's termination of employment if the Employee was
terminated for one (or more) of the following reasons: (i) the Employee's
conviction, or plea of guilty or nolo contendere to the commission of a felony
---------------
(ii) the Employee's commission of any fraud, misappropriation or misconduct
-4-
which causes demonstrable injury to the Company or a Subsidiary , (iii) an act
of dishonesty by the Employee resulting or intended to result, directly or
indirectly, in gain or personal enrichment at the expense of the Company or a
Subsidiary, or (iv) any breach of the Employee's fiduciary duties to the Company
as an employee or officer. It shall be within the sole discretion of the
Committee to determine whether the Employee's termination was for one of the
foregoing reasons, and the decision of the Committee shall be final and
conclusive.
7. If the Employee is granted an approved leave of absence, the Option
shall not be affected unless such leave is longer than 13 weeks. If the Option
is not exercisable at the beginning of an approved leave of absence lasting
longer than 13 weeks, the Exercise Date of the Options shall be postponed for
a period equal to the length of such leave of absence, unless such postponement
is waived in writing by the Committee in its sole discretion.
8. The Employee shall have no rights as a stockholder with respect to any
shares issuable upon exercise of the Option until the date a stock certificate
is issued to the Employee for such shares. Except as otherwise expressly
provided in the Plan, no adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date such stock certificate is
issued.
9. In the event there is during any fiscal year of the Company one or more
splits, subdivisions, or combinations of shares of Common Stock resulting in an
increase or decrease by more than 1% of the shares outstanding at the beginning
of the year, the number of shares deliverable upon the exercise thereafter of
the Option shall be increased or decreased proportionately, as the case may be,
without change in the aggregate purchase price. Common Stock dividends, splits,
subdivisions or combinations during any fiscal year which do not exceed in
the aggregate 1% of the Common Stock issued and outstanding at the beginning of
such year shall be ignored for purposes of the Plan. All adjustments for any
fiscal year shall be made as of the last day of such year.
10. In case the Company is merged or consolidated with another
corporation, or in case the property or stock of the Company is acquired by
another corporation, any Options outstanding under this Grant shall become
immediately exercisable and in such manner as to enable the shares acquired on
exercise to participate, in the same manner as other outstanding shares, in the
sale of the Corporation substantially as an entirety (whether by sale of stock,
sale of assets, merger, consolidation, tender offer, exchange offer, or
otherwise).
-5-
11. The interpretation and decision with regard to any questions arising
under the Plan or with respect to the Option made by the Committee shall be
final and conclusive on the Employee.
12. All notices hereunder shall be sufficiently made if personally
delivered to the Employee or sent by regular mail addressed (a) to the
Employee's address as set forth in the books and records of the Company or any
Subsidiary, or (b) to the Company or the Committee at the principal office of
the Company clearly marked "Attention: Stock Option Committee".
-6-
IN WITNESS WHEREOF, this Agreement has been executed by the Company
by one of its duly authorized officers as of the date specified above.
CACHE, INC.
By:___________________________
Victor J. Coster
Corporate Secretary
I hereby acknowledge receipt of the Option and agree to the provisions set
forth in this Agreement.
Date: _____________________________
Name
-7-
EXHIBIT 10.13 BANK AGREEMENT
SECOND MASTER AMENDMENT TO REVOLVING CREDIT AGREEMENT
AND SECURITY AGREEMENT
Second Master Agreement entered into as of November 21, 2002 between
CACHE, INC. (the "borrower") and FLEET NATIONAL BANK ( the "bank").
WHEREAS, the Borrower and the Bank are parties to a Second Amended and
Restated Revolving Credit Agreement dated as of August 26, 1996 (as amended by
that certain Master Agreement dated July 19, 1999 and as the same may be further
amended, the "Agreement");
WHEREAS, the Borrower has requested that the Bank amend, and the Bank has
agreed to amend, certain provisions of the Agreement;
WHEREAS, the Borrower and the Bank are parties to a Security Agreement
dated as of August 26, 1996 (the "Security Agreement"); and
NOW, THEREFORE, the parties hereto agree as follows:
1. The Agreement is hereby amended as follows:
(a) Section 5.1 (Certain Defined Terms) of the Agreement shall be
amended as follows:
(i) The Definition of Commitment termination Date shall be
amended to read in its entirety as follows:
"Commitment Termination date" shall mean November 30, 2005.
(ii) The Definition of Debt Service Coverage shall be amended
to read in its entirety as follows:
"Debt Service Coverage" shall mean a ratio of EBITDA, minus
-----
Capital Expenditures in such fiscal year, minus Federal, State and local
-----
income taxes paid by the Borrower during the applicable period of
determination to the current portion of Long Term Debt such time, plus
----
interest expense in such fiscal year.
(iii) The Definition of Tangible Net Worth shall be deleted from
the Agreement in its entirety.
(iv) The Definition of Debt Ratio shall be deleted from the
Agreement in its entirety.
(v) The following new definitions shall be added to Section 5.1
in their correct alphabetical order and shall read as follows:
"Adjusted Net Income shall mean, with respect to the
Borrower and its Subsidiaries on a consolidated basis for any period,
the aggregate income (or loss) of the Borrower and its subsidiaries on
a consolidated basis for such period which shall be an amount equal to
net revenues and other proper items of income less the aggregate for the
----
Borrower and its subsidiaries on a consolidated basis of any and all
items that are treated as expenses under GAAP, and less, without
----
duplication, Federal, state and local income taxes as determined in
accordance with GAAP.
"Benchmark" shall mean the ability of the Borrower to
maintain a minimum Debt Service Coverage Ratio of 1.50 to 1.00 for eight
consecutive fiscal quarters beginning with the quarter ending March 31,
2001 and ending with the quarter ending December 31, 2002.
"Capital Expenditures" shall mean for any period, the sum
of (a) expenditures for any fixed assets or improvements and
replacements, substitutions or additions thereto which would be treated
as capital expenditures in accordance with GAAP and (b) the portion of
all payments with respect to each Capitalized Lease Obligations which
are required to be capitalized on the balance sheet of the applicable
Lessee in accordance with GAAP.
"EBITDA" shall mean, with respect to the Borrower and its
Subsidiaries for any period, the sum of (i) Adjusted Net Income, (ii)
interest expense, (iii) depreciation and amortization and (iv) Federal,
state and local income taxes, in each case of the Borrower and its
Subsidiaries on a consolidated basis for such period, computed in
accordance with GAAP.
"Funded Debt" shall mean, at any date of determination, the
aggregate funded indebtedness (as determined in accordance with GAAP and
Capitalized Lease Obligations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, on such date.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"Long Term Debt" shall mean indebtedness for borrowed money
which by its terms matures more than 12 months after the date incurred
or maturing sooner, the maturity thereof may be extended at the option
of the debtor beyond such 12 month period.
"Present Value of Operating Leases" shall mean the present
value of operating leases as determined in accordance with GAAP computed
by discounting at a rate per annum equal to 10%.
"Rent Adjusted Leverage Ratio" shall mean a ratio of total
Funded Debt plus the Present Value of Operating Leases plus 40% of
---- ----
contingent leases, as at the time of determination, to EBITDA plus
----
annual rental expenses, each to be determined in accordance with GAAP.
"Rolling Four Quarters" shall mean the consecutive twelve-
month period computed from the last day of the most recent fiscal
quarter to the 12 months prior to such last day.
(b) Section 2.3 (b) of the Agreement shall be amended to read in its
entirety as follows:
(b) If an event of Default shall occur at any time prior to
Borrower's satisfaction of the Benchmark, the Bank shall have the
option, in addition to all of the rights and remedies available to it
at law, in equity or under this Agreement, to acquire a Lien in the
Borrower's accounts receivable and inventory (collectively, the
"Collateral") pursuant to the Security Agreement previously executed by
the Borrower and delivered to the Bank. If the Borrower shall have
satisfied the Benchmark, the Bank shall not have the right to acquire
such a Lien in the Collateral pursuant to the Security Agreement unless
an Event of Default shall have occurred and the Borrower shall not have
cured same within the time periods therein specified, in which case the
Bank shall have the right to acquire such a Lien in the Collateral
pursuant to the Security Agreement. Notwithstanding the execution and
delivery by the Borrower of the Security Agreement pursuant to Section
2.1 hereof, the Security Agreement shall be of no force and effect and
the Bank is not authorized to file financing statements with respect to
the Collateral until (i) prior to the Benchmark, the occurrence of an
Event of Default and (ii) at all times after the Benchmark, the
occurrence of an Event of Default and the inability of the Borrower to
cure same within the time periods therein specified.
(c) Section 4.12 of the Agreement is hereby amended and restated in
its entirety to read as follows:
4.12 Rent Adjusted Leverage Ratio
(a) The Borrower shall maintain a minimum Rent Adjusted
Leverage Ratio as at the last day of each quarter, on a Rolling
Four quarters basis, of not less than 5.50 to 1.00.
(b) The bank will determine compliance with the foregoing
based on the financial information which the Borrower is required
to submit to the Bank.
(d) Section 4.13 of the Agreement is hereby amended and restated in
its entirety to read as follows:
4.13 Intentionally Omitted
(e) Section 4.14 of the Agreement is hereby amended and restated in
its entirety to read as follows:
4.14 Intentionally Omitted
(f) Section 4.15 of the Agreement is hereby amended by amending and
restating subsection (q), (r) and (s) thereof in their entirety and by adding
new subsections (t) and (u) to read as follows:
(q) The Borrower shall not make capital expenditures in excess of
$8,000,000 for the fiscal year ending December 31, 2002.
(r) The Borrower shall not make capital expenditures in excess of
$12,000,000 for the fiscal year ending December 31, 2003.
(s) The Borrower shall not make capital expenditures in excess of
$15,000,000 for the fiscal year ending December 31, 2004.
(t) The Borrower shall not make capital expenditures in excess of
$20,000,000 for the fiscal year ending December 31, 2005.
(u) The Bank will determine compliance with the foregoing based on
the financial information which the Borrower is required to submit
to the Bank.
(g) Section 4.16 of the Agreement is hereby amended and restated in
its entirety to read as follows:
4.16 Debt Service Coverage.
(a) The Borrower shall maintain a minimum Debt Service
Coverage ratio as at the last day of each fiscal quarter, on a Rolling
Four Quarters basis, of not less than 1.50 to 1.00.
(b) The Bank will determine compliance with the foregoing
based on the financial information which the Borrower is required to
submit to the Bank.
(h) Section 8.13(b) of the Agreement is hereby amended to read in its
entirety as follows:
The Borrower shall pay to the Bank a commitment fee selected by the
Borrower equal to either; (i) a commitment fee on the daily average
unused amount of the aggregate principal amount available for Loans
hereunder for the period from and including October __, 2002 to and
including the earlier of (a) the date the Commitment is terminated
pursuant to the terms hereof or (b) the Commitment Termination Date,
at a rate equal to 1/8 of 1% per annum. The accrued commitment fee,
if any, shall be payable on the Quarterly Dates and on the earlier
of the date the Commitment is terminated and the Commitment Termination
Date, or (ii) a non-refundable commitment fee in the amount of $50,000
(which Fee shall be payable upon the Borrower's execution hereof).
3. The Borrower hereby represents and warrants to the Bank that:
(a) Each and every one of the representations and warranties set forth
in the Agreement is true as of the date hereof and with the same effect as
though made on the date hereof, and is hereby incorporated herein in full by
reference as if fully restated herein in its entirety.
(b) No Default of Event of Default and no event or condition which,
with the giving of notice or lapse of time or both, would constitute such a
Default or Event of Default, now exists or would exist.
4. All capitalized terms used herein, unless otherwise defined herein,
have the same meanings provided therefor in the Agreement.
5. The amendments and waivers set forth herein are limited precisely as
written and shall not be deemed to (a) be a consent to or a waiver of any other
term or condition of the Agreement or any of the documents referred to therein
or executed in connection therewith or (b) prejudice any right or rights which
the Bank may now have or may have in the future under or in connection with the
Agreement of any documents referred to therein or executed in connection
therewith. Whenever the Agreement is referred to in the Agreement or any of the
instruments, agreements or other documents or papers executed and delivered in
connection therewith, it shall be deemed to mean the Agreement as modified by
this Master Amendment.
6. The Borrower shall execute and deliver concurrently herewith a
promissory note which shall be in replacement of and substitution for its
existing promissory note. Such new promissory note shall be in the form of
Exhibit A annexed hereto and be deemed the Note for all purposes of the
Agreement and documents relating thereto.
7. The Bank shall have no obligations under this Master Amendment and this
Master Amendment shall not be effective unless and until (i) the Bank shall have
received counterparts of this Master Amendment duly signed by the Borrower, (ii)
the Borrower shall have paid all the fees and expenses of the Bank's outside
counsel in connection with the preparation and negotiation of this Master
Amendment, which fees are estimated at $1,500, plus out-of-pocket expenses and
(iii) the Bank shall have received evidence of such proper corporate
organization, existence, authority and appropriate corporate proceedings with
respect to the Borrower and the matters addressed by this Master Amendment and
the documents, instruments and agreements executed pursuant hereto or in
connection herewith, and such other certificates, instruments and documents as
the Bank shall reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
CACHE, INC
By: /s/ Thomas E. Reinckens
-------------------------
Name: Thomas E. Reinckens
Title: President - COO
FLEET NATIONAL BANK
By: /s/ Gary W. Tyrell
--------------------------
Name: Gary W. Tyrell
Title: Senior Vice President
NOTE
15,000,000.00 November 21, 2002
FOR VALUE RECEIVED, the undersigned, CACHE, INC., a Florida corporation
(the "Borrower"), hereby promises to pay to the order of FLEET NATIONAL BANK,
the "Bank"), on November 30, 2005, the lesser of (a) the principal sum of
Fifteen Million and 00/100 ($15,000,000.00) Dollars, or (ii) the aggregate
unpaid principal amount of all Loans, as such term is defined in the Second
Amended and Restated Revolving Credit Agreement, dated as of the date hereof,
by and between the Borrower and the Bank (hereinafter, as amended by the
Master Amendment dated July 19, 1999 and further by the Second Master amendment
dated as of the date hereof and as it may from time to time be further amended,
modified or supplemented, referred to as the "Credit Agreement"), then
outstanding. The Borrower further promises to pay the Bank interest on the
unpaid principal amount hereof from the date hereof until maturity at the rates
per annum set forth in or established pursuant to the Credit Agreement and as
calculated therein. Interest on this Note for each Prime Rate Loan, LIBOR Loan
or COF Loan, as the case may be, shall be payable prior to maturity on the last
day of the applicable Interest Period therefor. Interest shall be payable on
maturity of this Note, whether at stated maturity, by acceleration or otherwise.
Anything herein to the contrary notwithstanding, the obligation of the
Borrower to make payments of interest shall be subject to the limitation that
payments of interest shall not be required to be made to the Bank to the extent
that the Bank's receipt thereof would not be permissible under the law or laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank. Any such payments of interest which are not made as
result of the limitation referred to in the preceding sentence shall be made by
the borrower to the Bank on the earliest interest payment date or dates on
which the receipt thereof would be permissible under such laws applicable to
the Bank limiting rates of interest which may be charged or collected by the
Bank. Such deferred interest shall not bear interest.
Payments of both principal and interest on this Note are to be made at the
office of the bank, at 750 Walnut Avenue Cranford, NJ 07016 or such other
places as the Bank shall designate to the Borrower in writing, in lawful money
of the United States of America in immediately available funds.
This Note is secured in the manner provided in the Credit Agreement and
the Security Documents, is subject to prepayment upon the terms and conditions
thereof and is entitled to the benefits thereof.
The Bank is hereby authorized by the Borrower to record on the schedule
annexed to this Note (or on a supplemental schedule thereto) the amount of each
Loan made by the Bank to the Borrower and the amount of each payment or
prepayment of principal of such Loans received by the Bank, it being understood,
however, that failure to make any such notation shall not affect the rights of
the Bank or the obligations of the Borrower hereunder in respect of this Note.
Upon the occurrence of any Event of Default, as defined in the Credit
Agreement, the principal amount of and accrued interest on this Note may be
declared due and payable in the manner and with the effect provided in the
Credit Agreement. The Borrower hereby agrees to pay the costs of collection and
reasonable attorneys' fees and expenses in case default occurs in the payment
of this Note.
This Note shall replace and supersede the Note made by the Borrower to the
order of the Bank dated July 19, 1999 (the "Prior note"); provided, however,
that the execution and delivery of this Note shall not in any circumstance be
deemed to have terminated, extinguished or discharged the Borrower's
indebtedness under such Prior Note, all of which indebtedness shall continue
under and be governed by this Note and the documents, instruments and agreements
executed pursuant hereto or in connection herewith. This Note is a replacement,
consolidation, amendment and restatement of the Prior Note and IS NOT A
NOVATION. The Borrower shall also pay and this Note shall also evidence any
and all unpaid interest in all Loans made by the Bank to the Borrower pursuant
to the Prior Note, and at the interest rate specified therein, for which this
Note has been issued as replacement therefor.
All terms used in this Note and not otherwise defined herein shall have
the same meanings that such terms have in the Credit Agreement.
THIS NOTE IS BEING DELIVERED IN AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
CACHE, INC.
By: /s/ Thomas E. Reinckens
-----------------------------
Name: Thomas E. Reinckens
Title: President - COO
SCHEDULE TO NOTE
This Note evidences the Loans made under the within described Credit
Agreement, in the principal amounts, of the types (Prime Rate or LIBOR Loans)
and on the dates set forth below, and with respect to LIBOR Loans, for the
interest period set forth below, subject to the payments or prepayments of
principal set forth below:
Principal
Principal Amount
Date Amount of Type of Interest Paid or Balance
Made Loans Loan Period Prepaid Outstanding
- ------- ------------ ----------- ----------- -------- -----------
EXHIBIT 11.1 CALCULATION OF BASIC AND DILUTED EARNINGS
PER COMMON SHARE
52 Weeks Ended
--------------------------------------------
December 29, December 28, December 27,
Earnings Per Share 2001 2002 2003
------------ ------------ ------------
Net income applicable
to common stockholders $3,298,000 $8,941,000 $11,089,000
------------ ------------ ------------
Basic Earnings Per Share
Weighted average number of
common shares outstanding 9,091,000 9,100,000 9,504,000
============ ============ ============
Basic earnings per share $0.36 $0.98 $1.17
============ ============ ============
Diluted Earnings Per Share
Weighted average number of
common shares outstanding 9,091,000 9,100,000 9,504,000
Assuming conversion of
outstanding stock options 1,039,000 1,140,000 1,343,000
Less: assumed repurchase
of common stock pursuant
to the treasury stock method (901,000) (608,000) (1,033,000)
------------ ------------ ------------
Weighted average number of
common shares outstanding
as adjusted 9,229,000 9,632,000 9,814,000
============ ============ ============
Diluted earnings per share $0.36 $0.93 $1.13
============ ============ ============
EXHIBIT 12.1 COMPUTATION OF RATIOS
Ratio of current assets to current liabilities = current assets (at balance
sheet date) divided by current liabilities (at balance sheet date).
Inventory turnover ratio = total cost of sales divided by average inventory
(beginning and ending inventory, divided by two, at the balance sheet date).
Book value per share = stockholders' equity divided by common shares outstanding
(at balance sheet date).
EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS
As independent auditors, we hereby consent to the incorporation of our report
included in this Form 10-K dated February 20, 2004 into the Company's previously
filed Registration Statement File Numbers 33-65113, 333-84848, 333-96717, and
333-110553.
New York, New York
February 20, 2004 /s/ KPMG. LLP
EXHIBIT 31.1 CERTIFICATION
I, Brian Woolf, certify that:
1. I have reviewed this annual report on Form 10-K of Cache Inc. (Cache),
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements are made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
Cache as of, and for, the periods presented in this annual report;
4. Cache's other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-14 and 15d-14) for the registrant and have:
a. designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to Cache, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b. evaluated the effectiveness of Cache's disclosure controls and
procedures and presented in this annual report our conclusions about
the effectiveness of the disclosure controls and procedures as of the
end of the period covered by this annual report based on such
evaluation; and
c. disclosed in this report any change in Cache's internal control over
financial reporting that occurred during Cache's fourth quarter that
has materially affected, or is reasonably likely to materially affect,
the registrant's internal control over financial reporting;
5. Cache's other certifying officer and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to Cache's
auditors and the audit committee of Cache's Board of Directors;
a. all significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect Cache's ability to record,
process, summarize and report financial information ; and
b. any fraud, whether or not material, that involves management or other
employees who have a significant role in Cache's internal control over
financial reporting.
March 24, 2004 By: /s/ Brian Woolf
-------------------
Brian Woolf
Chairman and Chief
Executive Officer
EXHIBIT 31.2 CERTIFICATION
I, Thomas E. Reinckens, certify that:
1. I have reviewed this annual report on Form 10-K of Cache Inc. (Cache),
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements are made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
Cache as of, and for, the periods presented in this annual report;
4. Cache's other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-14 and 15d-14) for the registrant and have:
a. designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to Cache, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b. evaluated the effectiveness of Cache's disclosure controls and
procedures and presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures as of the end of
the period covered by this annual report based on such evaluation; and
c. disclosed in this report any change in Cache's internal control over
financial reporting that occurred during Cache's fourth quarter that has
materially affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting;
5. Cache's other certifying officer and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to Cache's
auditors and the audit committee of Cache's Board of Directors;
a. all significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect Cache's ability to record,
process, summarize and report financial information ; and
b. any fraud, whether or not material, that involves management or other
employees who have a significant role in Cache's internal control over
financial reporting.
March 24, 2004 By: /s/ Thomas E. Reinckens
-------------------------------------
Thomas E. Reinckens
President and Chief Operating Officer
(Principal Financial and Accounting
Officer)
EXHIBIT 32.1 CERTIFICATION PURSUANT TO SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
Pursuant to, and solely for purposes of, 18 U.S.C. Section 1350 (Section 906 of
the Sarbanes-Oxley Act of 2002), each of the undersigned hereby certifies in
the capacity and on the date indicated below that:
1. The Annual Report of Cache, Inc. on Form 10-K for the period ending December
27, 2003 as filed with the Securities and Exchange Commission on the date
hereof (the "Report") fully complies with the requirements of Section 13
(a) or 15 (d) of the Securities and Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of Cache, Inc.
/s/ Brian Woolf March 24, 2004
------------------------------------
Brian Woolf
Chairman and Chief Executive Officer
/s/ Thomas E. Reinckens March 24, 2004
-----------------------------------
Thomas E. Reinckens
President and Chief Operating Officer
(Principal Financial and Accounting Officer)