142 West 57th Street (New York, NY) Sublease Agreement – Societe Air France and Ann Taylor Inc.
SUBLEASE AGREEMENT
SOCIETE AIR FRANCE
As Sublandlord
AND
ANN TAYLOR, INC.
As Subtenant
Dated as of the 23rd day of February, 1999
Premises: 18th Floor and Portion of 17th Floor
142 West 57th Street
New York, New York
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TABLE OF CONTENTS
1. SUBLEASING............................................. 1
2. RENT................................................... 2
3. SUBORDINATION TO MAIN LEASE............................ 3
4. RIGHTS AND OBLIGATIONS: EXCEPTIONS..................... 4
5. USE.................................................... 5
6. ELECTRICITY............................................ 6
7. DEFAULT................................................ 6
8. CONDITION OF SUBLET PREMISES........................... 6
9. IMPROVEMENTS........................................... 7
10. ADDITIONAL SERVICES REQUIRED BY SUBTENANT.............. 7
11. ASSIGNMENT AND SUBLETTING.............................. 7
12. ATTORNMENT............................................. 8
13. SUBTENANT'S REPRESENTATIONS............................ 8
14. SUBLANDLORD'S REPRESENTATIONS.......................... 9
15. BROKERS................................................ 10
16. SUBLANDLORD'S PERFORMANCE UNDER MAIN LEASE............. 10
17. NOTICES................................................ 10
18. INSURANCE.............................................. 11
19. ENTIRE AGREEMENT....................................... 11
20. NEW YORK LAW........................................... 11
21. SUCCESSORS AND ASSIGNS................................. 11
22. RENEWAL OPTION......................................... 11
23. HEADINGS............................................... 12
24. LANDLORD'S CONSENT..................................... 12
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (hereinafter referred to as the 'SUBLEASE') is
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made as of the 23rd day of February, 1999 between SOCIETE AIR FRANCE (formerly
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known as Compagnie Nationale Air France), a French corporation authorized to do
business in New York State, having offices at 888 Seventh Avenue, New York, New
York 10022 (hereinafter referred to as 'SUBLANDLORD') and ANN TAYLOR, INC., a
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Delaware corporation having offices at 142 West 57th Street, New York, New York
10019 (hereinafter referred to as 'SUBTENANT').
WITNESSETH:
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WHEREAS, pursuant to a certain Lease dated as of May 3, 1993 between
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Carven Associates, as landlord (hereinafter referred to as 'LANDLORD'), and
Sublandlord, as tenant as modified by Amendment To Lease dated 1993 (hereinafter
collectively referred to the 'MAIN LEASE' or 'LEASE'), Sublandlord is the tenant
of certain premises consisting of the entire 18th floor and a portion of the
17th floor in the building located at142 West 57th Street, New York, New York
(hereinafter referred to as the 'BUILDING'); and
WHEREAS, Sublandlord wishes to sublease to Subtenant, and Subtenant
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wishes to sublet from Sublandlord, the premises demised to Sublandlord under the
Main Lease (hereinafter referred to as the 'SUBLET PREMISES').
NOW, THEREFORE, for and in consideration of the rental payments to be
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made hereunder by Subtenant to Sublandlord and the mutual consideration
hereinafter set forth, Sublandlord and Subtenant hereby covenant and agree as
follows:
1. SUBLEASING
(a) Sublandlord does hereby sublease to Subtenant, and Subtenant does hereby
hire and take from Sublandlord, the Sublet Premises for the term and on the
conditions hereinafter set forth, and subject to all the terms, covenants and
provisions of the Main Lease, except as otherwise herein provided.
(b) The term of this Sublease shall commence on June 1, 1999 (hereinafter
sometimes referred to as the 'Sublease Commencement Date') and shall expire at
noon on September 30, 2006 or such earlier date on which this Sublease may
expire or be cancelled or terminated pursuant to its terms or the terms of the
Main Lease or as provided by law (hereinafter referred to as the 'Sublease
Expiration Date') .
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2. RENT
(a) Subtenant covenants and agrees to pay to Sublandlord rent (herein referred
to as the 'Fixed Rent') for the Sublet Premises at the rate of (i) $925,000.00
per annum, in equal monthly installments of $77,083.00, from June 1, 1999
through December 31, 2002, and (ii) $1,017,500.00 per annum, in equal monthly
installments of $84,791.67, from January 1, 2003through September 30, 2006.
Fixed Rent shall be payable in advance on the first day of each calendar month.
Fixed Rent and all other amounts payable by Subtenant to Sublandlord
under the provisions of this Sublease (herein referred to as the 'ADDITIONAL
RENT') shall be paid promptly when due, without notice or demand therefor, and
without deduction, abatement, counterclaim or setoff of any amount or for any
reason whatsoever except as may be otherwise provided herein. Fixed Rent and
Additional Rent shall be paid to Sublandlord in lawful money of the United
States at the address of Sublandlord set forth in Article 17 of this Sublease or
to such other person or at such other address as Sublandlord may from time to
time designate by notice to Subtenant as provided for herein. No payment by
Subtenant or receipt by Sublandlord of any lesser amount than the amount
stipulated to be paid hereunder shall be deemed other than on account of the
earliest stipulated Fixed Rent or Additional Rent nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction, and
Sublandlord may accept any check or payment without prejudice to Sublandlord's
right to recover the balance due or to pursue any other remedy available to
Sublandlord. Any provision in the Main Lease referring to fixed rent or
additional rent incorporated herein by reference shall be deemed to refer to the
Fixed Rent and Additional Rent due under this Sublease.
(b) In addition to the Fixed Rent, Subtenant shall pay to Sublandlord as
Additional Rent, within ten (10) days' after demand from Sublandlord from time
to time: (x) the difference, if any, between (i) Tenant's 'Tax Payment' payable
by Sublandlord as tenant under the Main Lease during any 'Tax Year' (as said
terms are defined in Article 39 of the Main Lease), and (ii) Tenant's Tax
Payment payable by Sublandlord as tenant under the Main Lease for Tax Year July
1, 1998 - June 30, 1999, and (y) the difference, if any, between (i) Subtenant's
Share of Tenant's 'Operating Payment' payable by Sublandlord as tenant under the
Main Lease during any 'Operation Year' (as said terms are defined in Article 40
of the Main Lease), and (ii) Tenant's Operating Payment payable by Sublandlord
as tenant under the Main Lease for Operation Year 1999. All such demands shall
be accompanied by a copy of any invoice, bill, notice or request received by
Sublandlord from Landlord. Subtenant shall also pay to Sublandlord as Additional
Rent, upon demand from time to time, all other amounts payable by Sublandlord to
Landlord under the Main Lease pursuant to the provisions thereof. If Sublandlord
is required by Landlord under the Main Lease to make advance payments, estimated
payments or deposits of any of the foregoing amounts, Subtenant shall make such
advance payments, estimated payments or deposits to Sublandlord consistent with
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the above provisions. Subtenant's obligations under this Article 2 shall be
apportioned for any period at the beginning or end of the term of this Sublease
that is less than a full calendar year or fiscal year. Sublandlord shall have
the right to demand payment of any amount of such Additional Rent during the
term of this Sublease or after the expiration of the term of this Sublease or
the earlier termination of this Sublease.
(c) If the sum of any installment or estimated payments made by Subtenant on
account of any or all of the items set forth in subparagraph (b) of this Article
2 exceed Sublandlord's share of such item(s) under the Main Lease for any year,
Sublandlord shall refund the excess to Subtenant within ten (10) days after the
amount of the excess is refunded to Sublandlord by Landlord. If the sum of any
installment or estimated payments made by Subtenant on account of any or all of
the items set forth in subparagraph (b) of this Article 2 are less than such
item(s) under the Main Lease for any year, Subtenant shall pay the amount of
such deficiency to Sublandlord within ten (10) days after demand.
(d) All costs, expenses and fees other than Fixed Rent which Subtenant assumes
or agrees to pay pursuant to this Sublease (including, without limitation, all
costs, expenses and fees payable by Sublandlord as tenant under the Main Lease
which are payable hereunder by Subtenant by their incorporation herein by
reference to the Main Lease) shall be deemed Additional Rent and, in the event
of non-payment, Sublandlord shall have all the rights and remedies provided for
in the case of non-payment of Fixed Rent.
(e) Subtenant shall pay, on or before the date same is due, any occupancy,
sales, use or similar tax, charge or fee that is at any time due or payable with
respect to the occupancy or use of the Sublet Premises or the payment of Fixed
Rent or Additional Rent by Subtenant to Sublandlord, and which is attributable
to this Sublease.
3. SUBORDINATION TO MAIN LEASE
This Sublease is and shall be expressly subject and subordinate to all
of the terms, provisions, covenants, agreements and conditions of the Main
Lease. This Sublease is also subject and subordinate to all instruments,
agreements and other matters to which the Main Lease is or shall be subject or
subordinate.
4. RIGHTS AND OBLIGATIONS; EXCEPTIONS
(a) A copy of the Main Lease, with certain financial terms redacted, has been
delivered to Subtenant. Subtenant confirms that Subtenant has read the Main
Lease and is familiar with the terms and provisions thereof. Except as otherwise
expressly provided herein, all of the terms, provisions, covenants, agreements
and conditions of the Main Lease are incorporated herein by reference and made a
part of this Sublease with the same force and effect as though set forth in full
herein. Subtenant shall conform to, and use the Sublet Premises in accordance
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with, all the terms, provisions, covenants, agreements and conditions of the
Main Lease, and will do no act which will result in a violation of said terms,
provisions, covenants, agreements and conditions. Subtenant shall perform the
terms, provisions, covenants, agreements and conditions of the Main Lease on the
part of Sublandlord to be performed (except as otherwise may be expressly
provided herein). To the extent there are inconsistencies between any provision
of the Main Lease and any provision of this Sublease, this Sublease shall
control unless the use or occupancy of the Sublet Premises by Subtenant or any
action or inaction by Subtenant in accordance with said provision becomes a
default under the terms of the Main Lease, in which event the provisions of the
Main Lease shall control.
Subtenant shall be entitled to the rights of Sublandlord, as tenant
under the Main Lease. Sublandlord shall have no liability by reason of any
default of Landlord under the Main Lease, it being understood that if
Sublandlord shall fail to fulfill any obligation of the Sublandlord hereunder
and if such failure is caused by the failure of Landlord to comply with its
obligations under the Main Lease, then Sublandlord shall have no obligation or
liability by reason of such failure. Without limiting the generality of the
foregoing, Subtenant understands that the supplying of services including,
without limitation, heat, light, water, air conditioning and other utilities,
janitorial cleaning, window washing and elevator services, and building
maintenance and repair are the obligations of Landlord, and that Sublandlord has
no control thereof, and assumes no responsibility in connection therewith; and
no failure to furnish, or interruption of, any such services or facilities shall
give rise to any (x) abatement, diminution or reduction of Subtenant's
obligations under this Sublease, (y) constructive eviction, in whole or in part,
or (z) liability on the part of Sublandlord.
If Landlord shall default in any of its obligations to Sublandlord with
respect to the Sublet Premises, Subtenant, at Subtenant's sole cost and expense,
shall have the right in its own name, and if required that of Sublandlord, or,
if required, both, to bring an action or proceeding with respect to such
default. Sublandlord agrees to take such steps as Subtenant may reasonably
request to cooperate with Subtenant in any such legal proceeding or action, all
at Subtenant's sole cost and expense. If Subtenant shall commence any proceeding
or take any other action to enforce the obligations of Landlord insofar as such
obligations relate to the Sublet Premises, Subtenant agrees to indemnify and
hold Sublandlord harmless from and against any costs, liabilities, damages or
expenses (including reasonable attorneys' fees) which Sublandlord may incur in
connection therewith or by reason thereof.
Notwithstanding anything to the contrary in the foregoing, Sublandlord
shall promptly forward to Landlord any requests or other communications made by
Subtenant related to the performance by Landlord of its obligation under the
Main Lease, and shall promptly forward to Subtenant any communication received
from Landlord related to the Sublet Premises.
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(b) Notwithstanding anything to the contrary contained in this Sublease or the
Main Lease:
(i) for the purposes of incorporation of the Main Lease by reference
in this Sublease, except as otherwise expressly provided herein, and except
to the extent that they are inapplicable or modified by the terms and
provisions of this Sublease (a) references in the Main Lease to the
'Premises' or the 'demised premises' shall be deemed to refer to the Sublet
Premises, (b) references in the Main Lease to 'Landlord' shall be deemed to
refer to Sublandlord under this Sublease, (c) references in the Main Lease
to 'Tenant' shall be deemed to refer to Subtenant under this Sublease, (d)
references in the Main Lease to 'this Lease' shall be deemed to refer to
this Sublease, (e) references in the Main Lease to the 'Expiration Date'
shall be deemed to refer to the Sublease Expiration Date, (f) references in
the Main Lease to the 'Commencement Date' shall be deemed references to the
Sublease Commencement Date, and (g) where Landlord's consent is required
pursuant to the Lease, both Landlord's and Sublandlord's consent shall be
required and Sublandlord shall not be deemed to have unreasonably withheld
its consent if Landlord shall fail or refuse to give its consent and
Sublandlord agrees that it shall not unreasonably withhold or delay its
consent where Landlord has granted its consent;
(ii) the Fixed Rent and Additional Rent to be paid by Subtenant
hereunder shall be governed by the terms and provisions of Article 2 of
this Sublease;
(iii) the time limits contained in the Main Lease for the giving of
notices, making of demands or performing of any act, condition or covenant
on the part of the tenant thereunder, or for the exercise by the tenant
thereunder of any right, remedy or option, are changed for the purposes of
incorporation herein by reference by shortening the same in each instance
by three (3) days, so that in each instance Subtenant shall have three (3)
days less time to observe or perform hereunder than Sublandlord has as the
tenant under the Main Lease;
(iv) the following parts, provisions and exhibits of the Main Lease
are not applicable to this Sublease, and are not incorporated herein by
reference:
(1) Articles 38 D&E, 41, 44, 47A, 51, 55, 56, 58, 61, 62, 66 and
Third Rider (Takeover Agreement) and Exhibits thereto; and
(2) Exhibits B, E and F.
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5. USE
Subtenant shall use the Sublet Premises for executive, administrative
and general offices and for no other purposes.
6. ELECTRICITY
Subtenant covenants and agrees to pay to Sublandlord for the use of
electrical energy in the Sublet Premises at the rate of $55,500.00 per annum
($3.00 per square foot) payable in equal monthly installments of $4,625, said
payments to be made by Subtenant together with payments of Fixed Rent. Subtenant
shall also pay to Sublandlord, within ten (10) after demand from Sublandlord
from time to time, any amount that Sublandlord's payments to Landlord for the
use of electrical energy under the Main Lease exceeds the rate of $55,500.00 per
annum.
7. DEFAULT
Subtenant covenants and agrees that in the event that it shall default
in the performance of any of the terms, covenants and conditions of this
Sublease (including those portions of the Main Lease incorporated herein by
reference) beyond any applicable notice and grace period provided for in the
Main Lease and incorporated herein by reference (as shortened by Article
4(B)(iii) hereof), Sublandlord shall be entitled to exercise any and all of the
rights and remedies to which it is entitled by law, including, without
limitation, the remedy of summary proceeding, and also any and all of the rights
and remedies specifically provided for in the Main Lease and incorporated herein
by reference.
8. CONDITION OF SUBLET PREMISES
The Sublet Premises are demised to Subtenant in the 'as is' condition
which shall exist on the Sublease Commencement Date. Subtenant is subleasing the
Sublet Premises from the Sublandlord after having had an opportunity to fully
inspect the Sublet Premises. Subtenant agrees that the term 'as is' means that
it will sublease the Sublet Premises without warranty or representation, either
oral or written, or expressed or implied, as to the physical condition of the
Sublet Premises or the compliance of same with building, fire, health and zoning
codes and other applicable laws, ordinances and regulations. Sublandlord
expressly disclaims any warranty or representation made to Subtenant unless such
warranty or representation is contained in writing as a part of this Sublease.
Subtenant shall be solely responsible for all costs which may be imposed on
Sublandlord or Subtenant under the Main Lease in connection with the condition
of the Sublet Premises. Prior to the Sublease Commencement Date Sublandlord
shall have the right to remove any furniture or furnishings on the Sublet
Premises.
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9. IMPROVEMENTS
(a) Subtenant may make changes, alterations, additions or improvements to
the Sublet Premises, subject, however, to the consent of Sublandlord and, to the
extent required under the Main Lease, the consent of Landlord; however
Sublandlord agrees that it shall not unreasonably withhold or delay its consent
to any changes, alterations, additions or improvements to the Sublet Premises
consented to by Landlord. Any changes, alterations, additions or improvements by
or on behalf of Subtenant shall be made subject to and in accordance with the
provisions of the Main Lease.
(b) Subtenant shall pay any and all actual fees or charges Sublandlord may
incur and any and all fees or charges Landlord may incur in connection with
Subtenant's making changes, alterations, additions or improvements to the Sublet
Premises. Except as expressly set forth in this Sublease, on or before the
expiration or sooner termination of this Sublease, if Landlord requires
Sublandlord to restore the Sublet Premises to their condition prior to the
making of any changes, alterations, additions or improvements by Sublandlord or
Subtenant, Subtenant shall, at its sole cost and expense, promptly make such
restoration and repair any damage caused by such thereby.
10. ADDITIONAL SERVICES REQUIRED BY SUBTENANT
Subtenant shall attempt to make its own arrangements with Landlord for
the furnishing of additional services to the Sublet Premises other than those
which are required to be furnished by Landlord under the terms of the Main Lease
and any such additional services shall be paid for by Subtenant. If Landlord
shall refuse to respond to such request for additional service, Sublandlord
shall, at Subtenant's sole cost and expense, request Landlord to perform such
additional services at Subtenant's sole cost and expense. For the purposes of
this Article 10, the term 'additional services' shall include, but not be
limited to, overtime HVAC service, overtime freight elevator service and
increased capacity of electric energy.
11. ASSIGNMENT AND SUBLETTING
(a) Subtenant for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Sublease, nor
underlet, or suffer or permit the Sublet Premises or any part thereof to be used
by others without the prior consent of Sublandlord and Landlord.
(b) Sublandlord agrees that its consent to any proposed assignment or
subletting by Subtenant shall not be unreasonably withheld so long as Subtenant
and the proposed subtenant or assignee shall (i) deliver to Sublandlord (A) in
the case of a proposed assignment, an instrument of assignment, in form and
substance satisfactory to Landlord and reasonably satisfactory to Sublandlord,
duly executed by Subtenant and such assignee, in which such assignee shall
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assume observance and performance of, and agree to be bound by, all of the
terms, covenants and conditions of this Sublease on Subtenant's part to be
performed, or (B) in the case of a proposed subletting, a sublease agreement on
terms and conditions satisfactory to Landlord and reasonably satisfactory to
Sublandlord, duly executed by Subtenant and the proposed sub-subtenant, and (ii)
deliver to Sublandlord any instrument required by Landlord in connection with
its consent to such transaction and obtain the consent of Landlord (if required
pursuant to the terms of the Main Lease), and (iii) pay or cause to be paid to
Sublandlord and Landlord any reasonable costs that may be incurred by
Sublandlord (not to exceed $1,000) or Landlord in connection with said
assignment or sublease, including, without limitation, the costs of making
investigations as to the acceptability of the proposed assignee or subtenant and
reasonable legal costs incurred in connection with the review of any term sheet,
proposed assignment or sublease or any documentation in connection therewith and
in the preparation of any documentation in connection with any request for
consent, whether or not granted. Each such assignment instrument or sublease
shall contain a provision to the effect that such instrument or sublease shall
not be effective unless and until Sublandlord and Landlord (if required pursuant
to the terms of the Main Lease) shall have consented thereto.
12. ATTORNMENT
In the event of termination, re-entry or dispossession of Sublandlord by
Landlord under the Main Lease, Landlord may, at its option, take over all of the
right, title and interest of Sublandlord, as sublessor, under this Sublease, and
Subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of this Sublease, except that Landlord shall not (i) be
liable for any previous act, omission or negligence of Sublandlord under this
Sublease, which theretofore accrued to Subtenant against Sublandlord, (ii) be
subject to any counterclaim, defense or offset not expressly provided for in
this Sublease which theretofore accrued to Subtenant against Sublandlord, (iii)
be bound by any previous modification of this Sublease not consented to by
Landlord or by any previous prepayment of more than one month's Fixed Rent and
Additional Rent unless such prepayment was actually received by Landlord, or
(iv) be bound to perform any work which Sublandlord is obligated to perform
hereunder, or to pay Subtenant or any other person or entity for the same.
Subtenant waives all rights under any present or future laws or otherwise to
elect, by reason of the termination of the Main Lease, to terminate this
Sublease or surrender possession of the Sublet Premises. Nothing in this Article
12 shall be deemed to affect any liability that Sublandlord may have to
Subtenant pursuant to this Sublease.
13. SUBTENANT'S REPRESENTATIONS
Subtenant covenants, warrants and represents:
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(a) that Subtenant shall perform all of its obligations under this Sublease
(including, without limitation, all of the obligations arising under the Main
Lease which are incorporated herein by reference);
(b) that Subtenant will not do or omit to do anything which would
constitute a default under the provisions of the Main Lease incorporated herein
by reference: and
(c) that Subtenant shall indemnify, defend and hold harmless Sublandlord
and Landlord and their respective agents and employees from and against any and
all claims, liabilities, damages, losses or expenses (including, without
limitation, reasonable attorneys fees) which may be imposed upon or incurred by
or asserted against Sublandlord and/or Landlord and/or their respective agents
or employees by reason of (i) Subtenant's failure to comply with the provisions
of this Sublease, (ii) the negligent or improper use or occupancy of the Sublet
Premises by Subtenant or its successors or assigns, (iii) any work or thing done
whatsoever by or at the instance of Subtenant, its agents, contractors,
subcontractors, employees, licensees, successors or assigns (other than work
performed by Sublandlord), or any condition created by Subtenant, its agents,
contractors, subcontractors, employees, licensees, successors or assigns in, on
or about the Sublet Premises, (iv) any negligence or other wrongful act or
omission on the part of Subtenant or any of its agents, contractors,
subcontractors, employees, licensees, successors or assigns, or (v) any
accident, injury or damage to any person or property occurring in, on or about
the Sublet Premises or any part thereof during the term of this Sublease, except
to the extent caused by the negligence or willful misconduct of Sublandlord
(with respect to a claim against Sublandlord) or Landlord (with respect to a
claim against Landlord). In case any action or proceeding is brought against
Sublandlord and/or Landlord and/or their respective agents and employees by
reason of any such claim, neither Sublandlord nor Landlord shall settle the same
without Subtenant's written consent and Subtenant, upon written notice from
Sublandlord and/or Landlord, shall at Subtenant's expense resist and defend such
action or proceeding by counsel selected by its insurance carrier or other
counsel approved by Sublandlord and/or Landlord in writing, which approval will
not be unreasonably withheld by Sublandlord.
14. SUBLANDLORD'S REPRESENTATIONS
Sublandlord represents that (i) it has paid all rent and additional rent
presently payable pursuant to the Main Lease as of the date of this Sublease,
(ii) to its knowledge no event has occurred which is, or with the giving of
notice or passage of time or both will become, a condition of limitation under
the Main Lease, on the part of either Sublandlord or Landlord, (iii) it is
currently the tenant under the Main Lease and the Main Lease is presently in
full force and effect, (iv) it has not received any notices of default citing
any defaults under the Main Lease which remain uncured, and (v) the Main Lease,
a copy of which has been examined by Subtenant (including said Amendment),
represents the entire agreement with respect to the Sublet Premises between
Landlord and Sublandlord.
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15. BROKERS
(a) Subtenant represents that Subtenant has dealt with no broker in
connection with this transaction. Subtenant shall indemnify and hold Sublandlord
and Landlord harmless from and against any and all claims, liabilities, costs
and expenses of any kind and nature (including reasonable attorneys' fees)
arising from or related to a breach of the foregoing representation.
(b) Sublandlord represents that it has dealt with no broker in connection
with this transaction. Sublandlord shall indemnify and hold Subtenant and
Landlord harmless from and against any and all claims, liabilities, costs and
expenses of any kind and nature (including reasonable attorneys' fees) arising
from or related to a breach of the foregoing representation.
16. SUBLANDLORD'S PERFORMANCE UNDER MAIN LEASE
(a) Sublandlord will duly observe and perform every term and condition of
the Main Lease to the extent that such term and condition is not provided in
this Sublease to be observed or performed by Subtenant (and except to the extent
that any failure so to pay or any failure in such observance or performance
shall have resulted, directly or indirectly, from any default by Subtenant in
its obligation to pay any amount of the Fixed Rent or Additional Rent hereunder
or to observe or perform any of the terms, covenants or conditions in this
Sublease or in the Main Lease on Subtenant's part to observe or perform).
(b) Sublandlord shall not enter into any modification or amendment of the
Main Lease, or any other agreement, or take any other action which results in
the modification, surrender or cancellation of the Main Lease, if such
modification, surrender or cancellation decreases any of Subtenant's rights
under this Sublease, or increases any of Subtenant's obligations or remedies
under this Sublease, without the prior written consent of Subtenant. Any such
modification, amendment, agreement, surrender or cancellation made without such
consent shall have no effect on the rights or obligations of Subtenant under
this Sublease.
17. NOTICES
All notices, requests, demands, and other communications hereunder shall
be in writing, shall be sent by registered or certified mail, return receipt
requested, or by nationally recognized overnight carrier providing for receipted
delivery and shall be deemed have been given or made when received at the
respective addresses of Sublandlord and Subtenant first set forth above. Any of
the said addresses may be changed on ten (10) days written notice, given as
above provided. Duplicate originals of all notices to Sublandlord shall be sent
to Whitman Breed Abbott & Morgan LLP, 200 Park Avenue, New York, New York 10166,
Attention: Neil Underberg, Esq. Duplicate originals of all notices to Subtenant
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shall be sent to Ann Taylor, Inc., 404 Chapel Street, New Haven, Connecticut
06511, Attention: Vice President Finance.
18. INSURANCE
Subtenant shall maintain all insurance required of Sublandlord as tenant
in accordance with and pursuant to the Main Lease, which insurance shall name
both Landlord and Sublandlord as additional insureds.
19. ENTIRE AGREEMENT
This Sublease contains the entire agreement between Sublandlord and
Subtenant with respect to the subject matter hereof. This Sublease cannot be
changed in any manner except by a written agreement signed by Sublandlord and
Subtenant, and, if required, consented to by Landlord.
20. NEW YORK LAW
This Sublease shall be governed in all respects by the laws of the State
of New York.
21. SUCCESSORS AND ASSIGNS
The provisions of this Sublease, except as herein otherwise specifically
provided, shall extend to, bind and inure to the benefit of the parties hereto
and their respective successors and, in the case of Sublandlord, assigns. In the
event of any assignment or transfer of the leasehold estate under the Main Lease
the transferor or assignor, as the case may be, shall be and hereby is entirely
relieved and freed of all obligations under this Sublease upon the assumption by
the transferor or assignee of Sublandlord's obligations hereunder.
22. RENEWAL OPTION
Tenant shall have the option to renew this Sublease for the period
October 1, 2006 to March 19, 2012. The renewal period shall be upon all of the
agreements, terms, covenants, and conditions hereof, except that the Fixed Rent
shall be at the rate of $1,110,000.00 per annum ($92,500 per month) and
Subtenant shall have no further renewal right. The exercise by Subtenant of said
renewal option shall be evidenced and effected by Subtenant giving Sublandlord
written notice of Subtenant's intention to renew this Sublease prior to April 1,
2005; and provided further, that on the date of the giving of such notice and on
September 30, 2006 this Sublease shall be in full force and effect and no
default shall have occurred and be continuing. Such notice of renewal shall be
effective without the necessity of any other act or instrument, but either party
will at any time upon request of the other execute, acknowledge, and deliver an
instrument evidencing such renewal.
--------------------------------------------------------------------------------
23. HEADINGS
The article headings in this Sublease are inserted only as a matter of
convenience and are not to be given any effect in construing this Sublease.
24. LANDLORD'S CONSENT
This Sublease is conditional upon Landlord's consent and shall not
become effective unless and until Landlord's consent is obtained.
IN WITNESS WHEREOF, this Sublease has been duly executed as of the date
------------------
first set forth above.
SUBLANDLORD:
SOCIETE AIR FRANCE
By: /s/Auguste Gayte
_______________________________
Name: Augueste Gayte
Title: Senior Vice President
SUBTENANT:
ANN TAYLOR, INC.
By: /s/Valerie Richardson
_______________________________
Name: Valerie Richardson
Title: Senior Vice President
Real Estate and Development
TYPE: EX-10
SEQUENCE: 3
DESCRIPTION: EXHIBIT 10.5.3
EXHIBIT 10.5.3
AMENDMENT #3 TO EMPLOYMENT AGREEMENT
This AMENDMENT #3 (this 'Amendment') is entered into as of the 10th
day of March, 2000, by and between ANNTAYLOR STORES CORPORATION (the 'Company')
and J. PATRICK SPAINHOUR ('Executive'), and amends the Employment Agreement
between the Company and the Executive, dated as of February 16, 1996 and
effective as of February 19, 1996, as amended to date (the 'Employment
Agreement').
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the Company and Executive agree as
follows:
1. All capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Employment Agreement.
2. Section 7(d)(2) of the Employment Agreement is hereby amended to read as
follows:
'(2) (A) unless clause (B) below applies, then following the Date of
Termination and for the longer of the remaining Term of this Agreement and
the Severance Period, the Company shall pay to the Executive monthly an
amount equal to the Severance Payments (as defined in Section 7(a)(ii)
hereof), or (B) in the event the Date of Termination occurs following a
Change in Control, then, within five (5) days after the Date of
Termination, the Company shall pay to the Executive in a lump sum an
amount equal to the product of (x) the sum of the Executive's base salary
at the rate in effect as of the Date of Termination and the average of the
annual bonuses earned by the Executive in the three fiscal years of the
Company ended immediately prior to the Date of Termination (or, if higher,
in the three fiscal years of the Company ended immediately prior to the
Change in Control) multiplied by (y) the number three (3). For purposes of
this subsection (2): (i) if the Date of Termination occurs prior to the
occurrence of a Change in Control but during the pendency of a Potential
Change in Control (as hereinafter defined), such Date of Termination shall
be deemed to have occurred following a Change in Control and (ii) a
'Potential Change in Control' shall be deemed to have occurred if the
event set forth in any one of the following clauses shall have occurred:
(1) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
(2) the Company or any Person (as defined in Section 6(d)(2)(A)
hereof) publicly announces an intention to take or to consider taking
actions which, if consummated, would constitute a Change in Control;
-1-
--------------------------------------------------------------------------------
(3) any Person becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 15% of or more of either the then outstanding
shares of common stock of the Company or the combined voting power of
the Company's then outstanding securities (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company); or
(4) the Board adopts a resolution to the effect that, for
purposes of this subsection (2), a Potential Change in Control has
occurred.
3. Section 7(d)(3) of the Employment Agreement is hereby amended to
read as follows:
(3)the Executive shall continue to be provided with the same medical
and life insurance coverage as existed immediately prior to the
applicable Notice of Termination or Notice of Nonrenewal, as the
case may be, such coverage to continue throughout the period with
respect to which the Executive is entitled to receive Severance
Payments (or, if clause (B) of Section 7(d)(2) applies, for a period
of three (3) years following the Date of Termination);
4. Section 7(d) of the Employment Agreement is hereby further
amended by adding a new subsection (5) to read as follows:
(5)the Executive shall be entitled to continue to exercise all
outstanding options that were exercisable as of the Date of
Termination until the 90th day following expiration of the period
with respect to which the Executive is entitled to receive Severance
Payments (or, if clause (B) of Section 7(d)(2) applies, following
the third anniversary of the Date of Termination), but in no event
after expiration of the term of such options.'
5. The first sentence of paragraph 5(c) of Amendment #2 to the
Employment Agreement, dated August 12, 1999, is hereby amended to read as
follows: 'The Executive shall be awarded an additional 25,000 restricted shares
under the Option Plan on March 10, 2000.'
6. From and after the date hereof, the term 'Agreement' as used in
the Employment Agreement, shall mean the Employment Agreement as amended through
the date hereof, and the Employment Agreement, as so amended, shall continue in
full force and effect.
-2-
--------------------------------------------------------------------------------
7. Sections 13 through 17 of the Employment Agreement are hereby
made a part of, and are incorporated by this reference into, this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the 10th day of March, 2000.
ANNTAYLOR STORES CORPORATION
By: /s/ Robert C. Grayson /s/ J. Patrick Spainhour
------------------------ -------------------------
Robert C. Grayson, Director J. PATRICK SPAINHOUR
TYPE: EX-10
SEQUENCE: 4
DESCRIPTION: EXHIBIT 10.6.1
EXHIBIT 10.6.1
AMENDMENT #1 TO EMPLOYMENT AGREEMENT
------------------------------------
This AMENDMENT #1 (this 'Amendment') is entered into as of the 16th
day of February, 2000, by and between ANNTAYLOR STORES CORPORATION (the
'Company') and PATRICIA DEROSA ('Executive'), and amends the Employment
Agreement between the Company and the Executive, dated November 25, 1996 (the
'Employment Agreement').
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the Company and Executive agree as
follows:
1. All capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Employment Agreement.
2. (a) The Term of Executive's employment by the Company provided for in
Section 2 of the Employment Agreement, is hereby extended to February 28, 2003.
(b) The first sentence of Section 3 of the Employment Agreement is
hereby amended to read as follows: 'The Executive shall serve as President and
Chief Operating Officer of the Company with, in addition to her other duties,
responsibility and direct reporting relationships for management of the 'Ann
Taylor' brand, including marketing, merchandising, sourcing, product
development, product design and store design, and shall have such
responsibilities, duties and authority consistent with such positions as may
from time to time be determined by the Board of Directors of the Company.'
3. Section 5(a)(i) of the Employment Agreement is hereby amended to
provide that, commencing April 1, 2000, Executive's annual base salary shall be
increased to a rate of $750,000.
4. The fourth sentence of Section 5(a)(ii) of the Employment Agreement is
hereby amended to read as follows: 'Commencing with the Fiscal Year 2000
Performance Period under the Performance Plan, the Executive's Performance
Percentage (as that term is defined in such Plan) shall be established at 60%
per annum during the Term.' Section 5(a)(ii) is hereby further amended by adding
the following at the end thereof: 'Executive also shall participate in the Long
Term Cash Incentive Compensation Plan currently maintained by the Company, and
her Target Award (as defined in such Plan) shall be 40%.'
--------------------------------------------------------------------------------
5. The second sentence of Section 6(a)(iv) of the Employment Agreement is
hereby amended to read as follows: 'For purposes of this Agreement, the
Executive shall have 'Good Reason' to terminate her employment hereunder (1)
upon a failure by the Company to comply with any material provision of this
Agreement which has not been cured within ten (10) business days after notice of
such compliance has been given by the Executive to the Company, (2) upon action
by the Company resulting in a diminution of the Executive's title or authority,
(3) upon the Company's relocation of the Executive's principal place of
employment outside the New York City Metropolitan Area, or (3) one year after a
Change in Control.'
6. Section 6(e)(ii) of the Employment Agreement is hereby amended to read
as follows: '(ii) (A) unless clause (B) below applies, then following the Date
of Termination and for the longer of twelve (12) months thereafter or the
balance of the Term, but in no event greater than twenty-four (24) months, the
Company shall pay to the Executive monthly an amount ('Severance Payments')
equal to the quotient of (1) the Executive's annual base salary at the rate in
effect as of the Date of Termination (the 'Base Salary'), divided by (2) the
number twelve (12), or (B) in the event the Date of Termination occurs following
a Change in Control, then, within five (5) days after the Date of Termination,
the Company shall pay to the Executive in a lump sum an amount equal to the
product of (1) the sum of the Executive's Base Salary and the average of the
annual bonuses earned by the Executive in the three fiscal years of the Company
ended immediately prior to the Date of Termination (or, if higher, in the three
fiscal years of the Company ended immediately prior to the Change in Control)
multiplied by (2) the number of full and partial years remaining in the Term
(but in no event less than the number one (1)). For purposes of this subsection
(ii): (I) if the Date of Termination occurs prior to the occurrence of a Change
in Control but during the pendency of a Potential Change in Control (as
hereinafter defined), such Date of Termination shall be deemed to have occurred
following a Change in Control and (II) a 'Potential Change in Control' shall be
deemed to have occurred if the event set forth in any one of the following
clauses shall have occurred:
(1) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(2) the Company or any person (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the 'Exchange Act'), as
modified and used in Sections 13(d) and 14(d) thereof (a 'Person'), except
that such term shall not include (i) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities,
or (iv) a corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of
stock of the Company) publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in Control;
--------------------------------------------------------------------------------
(3) any Person becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Company representing 15% of or more of either the then outstanding shares of
common stock of the Company or the combined voting power of the Company's
then outstanding securities (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company); or
(4) the Board adopts a resolution to the effect that, for purposes of
this subsection (ii), a Potential Change in Control has occurred.
For purposes of this Agreement, the period during or with respect to which
Executive is entitled to receive payments hereunder is referred to as the
'Severance Period';'
7. Section 6(e)(iii) is hereby amended by changing the word 'season' to
'fiscal year' each time such word occurs in such Section.
8. Executive is hereby awarded fifty thousand (50,000) restricted shares
of Company Common Stock under the Company's 1992 Stock Option and Restricted
Stock and Unit Award Plan (the 'Option Plan'). Executive's rights to such shares
shall vest, and the restrictions thereon shall lapse, (i) as to 16,666 shares,
on February 28, 2001, provided that the Company shall have achieved at least
110% of the net income provided for in the Company's fiscal year 2000 operating
budget as approved by the Board of Directors of the Company in the ordinary
course, (ii) as to 16,667 shares, on February 28, 2002, provided that the
Company shall have achieved at least 110% of the net income provided for in the
Company's fiscal year 2001 operating budget as approved by the Board of
Directors of the Company in the ordinary course, and (iii) as to the remaining
16,667 shares, on February 28, 2003, provided that the Company shall have
achieved at least 110% of the net income provided for in the Company's fiscal
year 2002 operating budget as approved by the Board of Directors of the Company
in the ordinary course. If any of the restricted shares do not vest on the date
specified in any of clauses (i), (ii) or (iii) as a result of the failure of the
Company to achieve at least 110% of budgeted net income for the fiscal year
referenced in such clause, then Executive's rights to such unvested restricted
shares shall automatically be forfeited by Executive on such date and such
shares shall be canceled.
The Company shall enter into a Restricted Stock Award Agreement with
Executive for the above grant of restricted shares, incorporating the vesting
terms set forth above and otherwise on the terms and conditions set forth in the
form of Restricted Stock Award Agreement previously approved by the Compensation
Committee of the Board of Directors for restricted stock awards under the Option
Plan, including, but not limited to, terms providing for accelerated
exercisability upon the occurrence of an Acceleration Event (as defined in the
Option Plan).
9. Executive is hereby awarded a non-qualified performance-vesting stock
--------------------------------------------------------------------------------
option to purchase 100,000 shares of Common Stock under the Option Plan, having
an exercise price equal to the Fair Market Value of the Common Stock on the date
of this Amendment. Such option shall become exercisable in accordance with the
vesting schedule set forth in Exhibit A to this Amendment and shall be treated
as a Performance Option within the meaning of Section 6(e)(vii) of the
Employment Agreement.
The Company shall enter into a Stock Option Agreement with the Executive
for the above stock option grant, incorporating the vesting terms set forth on
Exhibit A and the provisions of Section 6(e)(vii) of the Employment Agreement
and otherwise substantially on the terms and conditions set forth in the form of
the Company's standard Stock Option Agreement applicable to 'performance
vesting' options previously approved by the Compensation Committee of the Board
of Directors, including, but not limited to, terms providing for accelerated
exercisability upon the occurrence of an Acceleration Event (as defined in the
Option Plan).
10. From and after the date hereof, the term 'Agreement' as used in the
Employment Agreement, shall mean the Employment Agreement as amended by this
Amendment, and the Employment Agreement, as so amended, shall continue in full
force and effect.
[Continued Next Page]
--------------------------------------------------------------------------------
11. Sections 11 through 15 of the Employment Agreement are hereby made a
part of, and are incorporated by this reference into, this Amendment.
12. IN WITNESS WHEREOF, the parties have executed this Amendment this 16th
day of February, 2000.
ANNTAYLOR STORES CORPORATION EXECUTIVE
By: /s/ J. Patrick Spainhour /s/ Patricia DeRosa
----------------------------------- -------------------
J.Patrick Spainhour, Chairman and PATRICIA DEROSA
Chief Executive Officer
--------------------------------------------------------------------------------
EXHIBIT A
STOCK OPTION VESTING SCHEDULE
Total Grant: 100,000
Grant Date: February 16, 2000
Exercise Price: Fair Market Value of the Common Stock on February 16,
2000 (i.e., closing market price of the Common Stock on the
NYSE on February 15, 2000).
Vesting Schedule:
1. On each Vesting Date set forth in Column A below, if for the fiscal year
set forth in Column C corresponding to such date:
(i) the Company shall have achieved net income per share equal to or more
than the target net income amount set forth in Column F for such fiscal
year, then on that Vesting Date, the option shall vest and become
exercisable with respect to 100% of the corresponding number of shares set
forth in column B;
(i) the Company shall have achieved net income per share that is less than
the amount set forth in Column F for such fiscal year, but equal to or
more than the minimum net income per share amount set forth in Column E
for such fiscal year, then on that Vesting Date the option shall vest and
become exercisable with respect to a percentage of the corresponding
number of shares set forth in column B determined in accordance with the
following formula:
% Vesting = Actual Net Income minus Col. D Budgeted Net Income
-----------------------------------------------------------
Col. F Target Net Income minus Col. D Budgeted Net Income
See example set forth below table.
---------------:-------------:--------:-------------:-------------:------------
: : : : :
Column A : B : C : D : E : F
---------------:-------------:--------:-------------:-------------:------------
Vesting Date :# of Shares : Fiscal : Budgeted : Minimum Net : Target
: Subject to : Year : Net Income : Income Per : Net Income
: Vesting : : Per Share : Share : Per Share
---------------:-------------:--------:-------------:-------------:------------
2/28/01 : 33,333 : 2000 : $[****]*: $[****]* : $[****]*
---------------:-------------:--------:-------------:-------------:------------
2/28/02 : 33,333 : 2001 : $[****]*: $[****]* : $[****]*
---------------:-------------:--------:-------------:-------------:------------
2/28/03 : 33,334 : 2002 : $[****]*: $[****]* : $[****]*
---------------:-------------:--------:-------------:-------------:------------
3-Year : : : : : $[****]*
Aggregate : : : : :
---------------:-------------:--------:-------------:-------------:------------
EXAMPLE: If the Company earns net income per share for fiscal year 2000 of
$[****]*, options to purchase 23,666 shares (71% of the 33,333) shall vest and
become exercisable on 2/28/01.
----------------
* Confidential Treatment Requested by AnnTaylor Stores Corporation.
--------------------------------------------------------------------------------
2. If the Company shall have achieved cumulative net income per share
aggregating at least $[****]* for the three fiscal year period from fiscal
2000 through fiscal 2002, then any options that did not vest pursuant to
Section 1 above shall vest and become exercisable on February 28, 2003.
3. Any options that have not vested by February 28, 2003 pursuant to Section
1 or Section 2 above, shall be automatically be terminated and canceled on
such date, without becoming exercisable.
4. For purposes of this Exhibit A:
(a)a 'fiscal year' of the Company shall mean the fiscal year commencing
on the Sunday closest to January 31 in the year mentioned (for example,
'fiscal year 2000' means the fiscal year that began on January 30, 2000
and ends on February 3, 2001);
(b)'net income' shall mean that net income set forth on the Company's
audited consolidated operating statement for the fiscal year in
question, and 'net income per share' shall mean the net income per
share, on a diluted basis, set forth on the Company's audited
consolidated operating statement for the fiscal year in question.
----------------
* Confidential Treatment Requested by AnnTaylor Stores Corporation.
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