UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from _________ to _________
Commission file number 0-21335
GARGOYLES, INC.
(Exact name of registrant as specified in its charter)
Washington 91-1247269
(State of Incorporation) (I.R.S. Employer Identification Number)
5866 SOUTH 194TH STREET
KENT, WASHINGTON 98032
(425) 921-3600
(Address and telephone number of registrant's principal executive offices)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
As of June 30, 1998, there were 7,837,191 outstanding shares of the registrant's
common stock, no par value, which is the only class of common or voting stock of
the registrant.
<PAGE>
GARGOYLES, INC.
INDEX TO FORM 10-Q
PAGE(S)
-------
PART 1 - FINANCIAL INFORMATION
Item 1: Financial Statements (Unaudited)
Consolidated Balance Sheets ....................................... 1
Consolidated Statements of Operations ............................. 2
Consolidated Statements of Cash Flows .......................... ...3
Notes to Consolidated Financial Statements ........................ 4
Item 2: Management's Discussion and Analysis of Financial
Condition and Results of Operations .............................. 7
Item 3: Quantitative and Qualitative Disclosure about Market Risk ........ *
PART II - OTHER INFORMATION
Item 1: Legal Proceedings ................................................ 11
Item 2: Changes in Securities and Use of Proceeds ........................ *
Item 3: Defaults upon Senior Securities .................................. *
Item 4: Submission of Matters to a Vote of Security Holders .............. 11
Item 5: Other Information ................................................ 11
Item 6: Exhibits and Reports on Form 8-K ................................. 12
* Omitted as not applicable
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
GARGOYLES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
JUNE 30, DECEMBER 31,
1998 1997
------------ ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 797,965 $ 892,176
Trade receivables, net 10,689,856 8,540,120
Inventories, net 11,399,436 13,057,024
Other current assets and prepaid expenses 2,446,753 1,792,124
------------ ------------
Total current assets 25,334,010 24,281,444
Property and equipment, net 2,084,552 2,441,133
Intangibles, net 20,818,593 21,232,817
Other assets 1,142,512 671,411
------------ ------------
Total assets $ 49,379,668 $ 48,626,805
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 7,492,567 $ 6,487,131
Accrued expenses and other current liabilities 4,163,402 6,402,287
Current portion of long-term debt 32,055,512 --
------------ ------------
Total current liabilities 43,711,481 12,889,418
Long-term debt, net of current portion --- 29,160,554
Commitments and contingencies
Shareholders' equity:
Preferred stock -- --
Common stock, no par value, authorized shares --
40,000,000, issued and outstanding --
7,837,191 and 7,437,191, respectively 26,574,281 25,711,782
Accumulated deficit (20,876,280) (19,121,995)
Cumulative translation adjustment (29,815) (12,954)
------------ ------------
Total shareholders' equity 5,668,187 6,576,833
------------ ------------
Total liabilities and shareholders' equity $ 49,379,668 $ 48,626,805
============ ============
</TABLE>
See accompanying notes to the Consolidated Financial Statements
<PAGE>
<TABLE>
GARGOYLES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------------- -----------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales $ 13,175,741 $ 15,866,299 $ 24,654,260 $ 24,064,565
Cost of sales 5,499,125 6,161,330 10,613,003 9,542,486
------------ ------------ ------------ ------------
Gross profit 7,676,616 9,704,969 14,041,257 14,522,079
License income 190,703 221,736 190,703 331,736
------------ ------------ ----------- ------------
7,867,319 9,926,705 14,231,960 14,853,815
------------ ------------ ----------- ------------
Operating expenses:
Sales and marketing 4,354,382 5,396,833 8,776,690 8,186,038
General and administrative 1,952,919 1,600,820 3,810,787 2,757,821
Shipping and warehousing 672,792 597,829 1,307,309 707,700
Research and development 218,396 398,865 416,214 764,156
------------ ------------ ----------- ------------
Total operating expenses 7,198,489 7,994,347 14,311,000 12,415,715
------------ ------------ ----------- ------------
Income (loss) from operations 668,830 1,932,358 (79,040) 2,438,100
Interest income (expense) (880,940) (533,060) (1,675,082) (506,269)
------------ ------------ ----------- ------------
Income (loss) before income taxes (212,110) 1,399,298 (1,754,122) 1,931,831
Income tax provision -- 286,500 ---- 393,500
------------ ------------ ---------- ------------
Net income (loss) $ (212,110) $ 1,112,798 $ (1,754,122) $ 1,538,331
============ ============ ============ ============
Basic and diluted net income (loss) per share $ (0.03) $ 0.14 $ (0.22) $ 0.20
============ ============ ============ ============
</TABLE>
See accompanying notes to the Consolidated Financial Statements
<PAGE>
GARGOYLES, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
SIX MONTHS ENDED JUNE 30,
---------------------------------
1998 1997
------------ ------------
OPERATING ACTIVITIES
<S> <C> <C>
Net income (loss) $ (1,754,122) $ 1,538,331
Adjustments to reconcile net income (loss) to net cash
used in operating activities:
Depreciation 426,593 466,080
Amortization 722,393 195,158
Deferred license income -- (180,000)
Minority interest --
Changes in assets and liabilities net of effects from
business acquisitions:
Accounts receivable (2,149,736) (6,844,140)
Inventories 1,657,588 (5,836,318)
Other current assets and other assets (771,399) (3,501,258)
Accounts payable, accrued expenses and other
current liabilities (1,033,612) 3,770,305
------------ ------------
Net cash used in operating activities (2,902,295) (10,394,842)
------------ ------------
INVESTING ACTIVITIES
Acquisition of property and equipment (70,013) ( 1,163,376)
Purchase of Sungold -- ( 11,771,497)
Purchase of Private Eyes -- (7,914,642)
------------- ------------
(70,013) (20,849,515)
FINANCING ACTIVITIES
Proceeds from stock issuance -- 35,135
Net proceeds from revolving of credit 12,658,439
Net proceeds from issuance of long-term debt 2,894,958 14,559,167
------------ ------------
Net cash provided by financing activities 2,894,958 27,252,741
------------ ------------
Effect of foreign currency translation on cash (16,861) --
------------ ------------
Net decrease in cash (94,211) (3,991,616)
Cash and cash equivalents, beginning of period 892,176 4,382,048
------------ ------------
Cash and cash equivalents, end of period $ 797,965 $ 390,432
============ ============
</TABLE>
See accompanying notes to the Consolidated Financial Statements
<PAGE>
GARGOYLES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1998
(UNAUDITED)
1. INTERIM FINANCIAL STATEMENTS
The accompanying consolidated financial statements of Gargoyles, Inc. and
its subsidiaries ("Gargoyles" or the "Company") are unaudited and include, in
the opinion of management, all normal recurring adjustments necessary to present
fairly the consolidated financial position at June 30, 1998 and the related
consolidated results of operations and cash flows for the periods presented.
Certain information and footnote disclosure normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to the rules and regulations of the
Securities and Exchange Commission. These condensed consolidated financial
statements should be read in conjunction with the Company's audited consolidated
financial statements and the related notes thereto included in the Company's
1997 Annual Report on Form 10-K/A as filed with the Securities and Exchange
Commission.
The Company's net sales are subject to seasonal variations. Accordingly,
the results of operations for the periods ended June 30, 1998 are not
necessarily indicative of the results that may be expected for the entire year.
2. INVENTORIES
Inventories consist of the following:
June 30, December 31,
1998 1997
------------ ------------
Materials .................................. $ 6,789,159 $ 7,119,328
Finished goods ............................. 6,455,560 7,909,147
Reserves for excess, slow-moving and
obsolete inventories ................. (1,845,283) (1,971,451)
------------ ------------
Inventories, net ................ $ 11,399,436 $ 13,057,024
============ ============
3. COMMITMENTS AND CONTINGENCIES
In 1998, the Company negotiated releases from certain of its operating
leases decreasing its minimum future lease payments under noncancelable
operating leases. Minimum future lease payments under noncancelable operating
leases are as follows:
June 30, December 31,
1998 1997
----------- ------------
1998 ......................................... $ 306,721 $1,381,397
1999 ......................................... 668,923 1,304,276
2000 ......................................... 445,209 1,101,755
2001 ......................................... 283,277 949,370
2002 ......................................... 94,571 700,000
Thereafter ................................... 7,881 3,500,000
----------- ----------
$ 1,806,582 $8,936,798
=========== ==========
<PAGE>
On June 8, 1998, the Company entered into a lease agreement with respect to
a warehouse facility located in Kent, Washington. The lease term commences
August 1, 1998 and terminates July 31, 2001 and is subject to earlier
termination on July 31, 2000 at the option of the Company. Base rent is
$13,411.54 per month.
The Company is currently involved in two lawsuits involving (i) claims by
the Company against a third party related to alleged infringement of the
Company's toric curve technology and (ii) claims by a former employee against
the Company alleging wrongful termination and discrimination under various laws.
In the opinion of management, the ultimate resolution of such litigation will
not have a significant adverse effect on the Company's financial condition or
the results of its operations.
4. INCOME TAXES
The Company recorded no income tax benefit relating to the net loss for the
three-month and six-month periods ended June 30, 1998, since a future benefit is
not assured. In 1997, the difference from the federal statutory income tax rate
of 34% resulted from a decrease in the reserve against certain tax assets.
5. DEBT RESTRUCTURING
In January 1998, the Company restructured its credit agreement (the "Credit
Agreement") with its primary lender. The amended Credit Agreement consists of
(i) a revolving loan commitment of up to $14 million, secured by the assets of
the Company, (ii) a term loan of $16.47 million, also secured by the assets of
the Company and (iii) an equipment loan of $3.9 million, secured by the
equipment of the Company, resulting in approximately $5 million additional
availability to the Company. The Credit Agreement was further amended on March
31, 1998 to reschedule principal payments and to revise financial covenants. The
Credit Agreement was further amended on August 13, 1998 to waive covenant
defaults through July 30, 1998 and to revise financial covenants for periods
after July 31, 1998. The revised Credit Agreement requires $8.8 million of
principal payments due January 4, 1999, with all remaining outstanding debt due
in April 1999. The Company believes that it is unlikely it will be able to make
such principal payments when due, absent the Company obtaining additional
financing through the sale of equity or debt securities, but there can be no
assurance that such financing will be available on a timely basis, on favorable
terms or at all. The additional funds are subject to certain conditions and
covenants, which include minimum tangible net worth, working capital, net sales,
and EBIDTA requirements, as well as ratios relating to debt coverages. The
Credit Agreement also prohibits the Company from paying dividends to its
shareholders.
In consideration for the amendments to the Credit Agreement, in January,
1998 the Company issued 400,000 shares of the Company's common stock to an
affiliate of its lender and agreed to file a registration statement related to
those shares with the Securities and Exchange Commission by November 15, 1998.
The shares were valued at the time of issuance based on the market price of the
Company's stock on the date of issuance less an appropriate discount based on
the nature of the underlying stock and its marketability. The common stock was
valued at $862,500 and was recorded as payment of $200,000 in bank fees that
were due December 31, 1997 and $662,500 in debt issuance costs.
6. COMPREHENSIVE INCOME (LOSS)
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income," which
establishes display requirements of comprehensive income in financial
statements. The Company's total comprehensive income (loss) for the three and
six month periods of 1998 and 1997 was ($206,331) and $1,112,798, and
$(1,770,984) and $1,538,331,respectively.
<PAGE>
7. EARNINGS PER SHARE
The weighted-average number of common shares for the three and six month
periods ended June 30, 1998 and 1997 is 7,837,191 and 7,423,193, and 7,806,079
and 7,421,613,respectively. The weighted-average number of common shares used in
the calculation of earnings per share for the three and six month periods ended
June 30, 1997 is 7,689,283 and 7,686,083, respectively. For purposes of
calculating diluted earnings per share for the three and six months ended June
30, 1998, common stock equivalents have not been included as the effect would be
antidilutive.
8. RECLASSIFICATIONS
Certain reclassifications have been made to the prior years' financial
statements to conform to the current year presentation.
9. 1997 BUSINESS ACQUISITIONS
Sungold Acquisition
- -------------------
On April 11, 1997, the Company purchased substantially all the assets and
assumed certain liabilities of Sungold Enterprises, LTD., a New York corporation
("Sungold") Sungold manufactured two principal lines of premium sunglasses,
Stussy EyeGear, a young men's fashion brand licensed to Sungold by Stussy, Inc.,
a leading designer of streetwear apparel and accessories, and Anarchy Eyewear, a
cutting-edge brand popular with alternative sports enthusiasts age 15 to 25.
The acquisition was accounted for using the purchase method of accounting
at the date of acquisition. Accordingly, the allocation of the initial purchase
price of $10,970,000 was based on the fair value of the assets acquired and
liabilities assumed. Costs in excess of the fair value of the assets acquired
and liabilities assumed are reflected as intangibles, a component of which is
the Stussy license agreement, which is being amortized over the remaining term
of the license.
Proforma information for the six months ended June 30, 1997, assuming the
Sungold acquisition had occurred at January 1, 1997, is as follows:
Sales $ 28,325,752
Gross profit 17,635,734
Net income (loss) 1,682,694
Net income (loss) per share $ 0.22
Private Eyes Acquisition
- ------------------------
On May 14, 1997, the Company purchased substantially all the assets and
assumed certain liabilities of the Private Eyes Sunglass Corporation, a
Massachusetts corporation ("Private Eyes"). Private Eyes was the licensee for
Ellen Tracy eyewear which features a collection of high-quality, high-fashion
women's sunglasses, readers, optical frames and accessories in a variety of
designs ranging from traditional to fashion forward. Private Eyes is the North
American distributor for Emmanuelle Khanh Paris Eyewear and also distributes its
own line of prescription frames and eyewear accessories.
The acquisition was accounted for using the purchase method of accounting
at the date of acquisition. Accordingly, the allocation of the purchase price
was based on the fair value of the assets acquired and liabilities assumed.
Costs in excess of the fair value of the assets acquired and liabilities assumed
are reflected as intangibles, a component of which is the Ellen Tracy license
agreement, which is being amortized over the remaining term of the license.
Proforma information for the six months ended June 30, 1997, assuming the
Private Eyes acquisition had occurred at January 1, 1997, is as follows:
Sales $32,463,817
Gross profit 19,922,279
Net income (loss) 1,658,962
Net income (loss) per share $ 0.22
<PAGE>
10. LIQUIDITY
The Company incurred significant operating losses in 1997 and for the six
months ended June 30, 1998. The Company was unable to make a scheduled payment
on its bank debt in December 1997, and at the Company's request, its banking
arrangements were restructured in the first quarter of 1998. The Company also
has had difficulty paying suppliers on a timely basis, and has made arrangements
with certain suppliers to provide for payment schedules for past due amounts and
to provide letters of credit for a portion of the purchase price of future
orders.
The Company is exploring various options designed to maximize shareholder
value, including the possible sale of equity or convertible debt securities to
fund working capital and, in part, to finance the January 1999 loan payment, but
there can be no assurance that such financing or other source of funds will be
available on a timely basis, on favorable terms or at all. In addition,
management is seeking to reduce expenses to levels that can be sustained by
operations. Failure of operations or expense reduction efforts to meet the
Company's expectations, unanticipated expenses, loss of continued cooperation of
the Company's key suppliers or the bank, third-party claims or adverse
developments in pending litigation could result in additional cash requirements
that could be difficult or impossible to satisfy and could require the Company
to further reduce its operating expenditures, to curtail operations, or to
dispose of operating assets to enable it to continue operations through December
31, 1998.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
FORWARD-LOOKING STATEMENTS
Certain statements within this report constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Forward-looking statements involve known and unknown risks,
uncertainties and other factors that may cause the actual results, performance
or achievements of the Company or industry results, to differ materially from
the anticipated results, performance or achievements expressed or implied by
such forward-looking statements. Such factors include, without limitation, the
factors discussed in the Company's Annual Report, as amended, on Form 10-K/A
under factors discussed in connection with the forward-looking statements.
Forward-looking statements reflect management's views, estimates and opinions at
the date on which the statements are made. The Company undertakes no obligation
to update forward-looking statements to reflect changes in circumstances or
changes in the views, estimates or opinions of management that occur after the
statements are made. Because of the inherent uncertainty of forward-looking
statements and because circumstances or management's views, estimates and
opinions may change, investors are cautioned not to place undue reliance on
forward-looking statements. Certain forward-looking statements are identified
with a cross reference to this paragraph.
GENERAL
Gargoyles designs, assembles, markets and distributes a broad range of
sunglasses and eyewear products. The Company competes primarily in the premium
sunglass markets by offering a diverse line of products marketed under a number
of brands owned by the Company or licensed from third parties. The Company's
principal brands include Gargoyles Performance Eyewear, Gargoyles Protective
Eyewear, Hobie Polarized Sunglasses, Timberland Eyewear, Stussy EyeGear, Anarchy
Eyewear, Angel Eyewear, Ellen Tracy Eyewear, Emmanuelle Khanh Paris Eyewear, and
Private Eyes. Under the Ellen Tracy Eyewear, Emmanuelle Khanh Paris Eyewear,
Private Eyes and Timberland Eyewear brands, the Company also offers diverse
lines of ophthalmic frames.
The Company operates both directly and through three wholly-owned
subsidiaries and one majority-controlled subsidiary. The Company's operating
subsidiaries include: H.S.C., Inc., a Washington corporation, Sungold Eyewear,
Inc., a Washington corporation, Private Eyes Sunglass Corporation, a Washington
corporation, and the kindling company, a California corporation.
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth results of operations, as a percentage of
net sales, for the periods indicated:
<TABLE>
Three Months Six Months
Ended Ended
June 30, June 30,
-------------------- -----------------
1998 1997 1998 1997
------ ------ ------ ------
<S> <C> <C> <C> <C>
Net sales ............................... 100.0% 100.0% 100.0% 100.0%
Cost of sales ........................... 41.7 38.8 43.0 39.7
Gross profit ............................ 58.3 61.2 57.0 60.3
License income .......................... 1.4 1.4 .8 1.4
Operating expenses:
Sales and marketing ................... 33.0 34.0 35.6 34.0
General and administrative ............ 14.8 10.1 15.5 11.5
Shipping and warehousing .............. 5.1 3.8 5.3 2.9
Research and development .............. 1.7 2.5 1.7 3.2
Total operating expenses ................ 54.6 50.4 58.0 51.6
Income (loss) from operations ........... 5.1 12.2 (0.3) 10.1
</TABLE>
THREE MONTHS ENDED JUNE 30, 1998 COMPARED TO THREE MONTHS ENDED JUNE 30, 1997
Net sales. Net sales decreased from $15.9 million for the quarter ended
June 30, 1997 to $13.2 million for the quarter ended June 30, 1998. This
decrease of $2.7 million (17%) was primarily the result of decreases in sales of
the Company's Gargoyles, Hobie and Timberland products that were partially
offset by increases in sales of the Company's Sungold product lines. The Sungold
operation was acquired during the second quarter of 1997 so the 1997 quarter did
not reflect a full quarter's sales of Sungold products. See Note 9 of Notes to
Financial Statements.
Gross profit. Gross profit decreased from $9.7 million for the quarter
ended June 30, 1997 to $7.7 million for the quarter ended June 30, 1998. Gross
margin decreased to 58.3% in the 1998 quarter from 61.2% in the 1997 quarter.
The decrease in gross margin in 1998 was attributable to reduced sales levels
and liquidation of certain inventories in the 1998 quarter at discounted prices.
License income. License income decreased to $191,000 for the quarter ended
June 30, 1998 compared to $222,000 for the quarter ended June 30, 1997. License
income represents royalties collected on product sold by others that have been
authorized to utilize the Gargoyles name or technology.
Operating expenses. Operating expenses decreased to $7.2 million for the
quarter ended June 30, 1998 from $8 million for the quarter ended June 30, 1997.
As a percentage of net sales, operating expenses increased to 54.6% in the 1998
quarter from 50.4% in the 1997 quarter. Sales and marketing expenses decreased
$1.0 million in the 1998 quarter, as a result of cost cutting efforts and
reduced sales levels. As a percentage of net sales, sales and marketing expenses
decreased to 33.0% in the 1998 quarter from 34.0% in the 1997 quarter. General
and administrative expenses increased $352,000 in the 1998 quarter. As a
percentage of net sales, general and administrative expenses increased to 14.8%
in the 1998 quarter from 10.1% in the 1997 quarter. Shipping and warehousing
expenses increased $75,000 in the 1998 quarter. As a percentage of net sales,
shipping and warehousing expenses increased to 5.1% in the 1998 quarter from
3.8% in the 1997 quarter. Research and development expenses decreased $180,000
in the 1998 quarter, primarily as a result of management's efforts to contain
certain costs. As a percentage of net sales, research and development expenses
decreased to 1.7% in the 1998 quarter from 2.5% in the 1997 quarter. The
decrease in total operating expenses of $796,000 million is primarily due to the
reduction in operating expenses resulting from the Company's cost-cutting
measures and reduced sales levels.
Income (loss) from operations. The Company realized income from operations
of $669,000 for the quarter ended June 30, 1998 compared to income from
operations of $1,932,000 for the quarter ended June 30, 1997.
<PAGE>
Interest income (expense). Interest expense was $881,000 for the quarter
ended June 30, 1998 compared with interest expense of $533,000 for the quarter
ended June 30, 1997 as a result of increased interest-bearing borrowings. The
Company's outstanding borrowings were $32.1 million at June 30, 1998 compared to
$27.2 million at June 30, 1997.
Income tax provision (benefit). The Company's income tax benefit was zero
for the quarter ended June 30, 1998 compared to an income tax provision of
$286,500 for the quarter ended June 30, 1997. Differences from the federal
statutory income tax rate of 34% resulted from changes in the reserve against
certain tax assets.
Net income (loss). As a result of the items discussed above, the Company's
net loss was $212,000 or $.03 per share for the quarter ended June 30, 1998
compared to a net income of $1.1 million or $.14 per share for the quarter ended
June 30, 1997.
SIX MONTHS ENDED JUNE 30, 1998 COMPARED TO SIX MONTHS ENDED JUNE 30, 1997
Net sales. Net sales increased to $24.7 million for the six months ended
June 30, 1998 from $24.1 million for the six months ended June 30, 1997. This
increase was primarily the result of sales by Sungold, acquired by the Company
during the 1997 second quarter, that was partially offset by decreases in sales
of the Company's Gargoyles, Hobie, and Timberland products.
Gross profit. Gross profit decreased to $14.0 million for the six months
ended June 30, 1998 from $14.5 million for the six months ended June 30, 1997.
Gross margin decreased to 57.0% in 1998 from 60.3% in 1997. The decrease in
gross margin in 1998 was primarily attributable to reduced sales levels and the
liquidation of certain inventories in 1998 at discounted prices.
License income. License income decreased to $191,000 for the six months
ended June 30, 1998 compared to $332,000 for the six months ended June 30, 1997.
The decrease in license income in 1998 was the result of a one-time sale of
product by a licensee in 1997.
Operating expenses. Operating expenses increased to $14.3 million for the
six months ended June 30, 1998 from $12.4 million for the six months ended June
30, 1997. As a percentage of net sales, operating expenses increased to 58.0% in
1998 from 51.6% in 1997. Sales and marketing expenses increased $591,000 in 1998
as compared to the same period in 1997. As a percentage of net sales, sales and
marketing expenses increased to 35.6% in the 1998 period from 34.0% in the
comparable 1997 period. General and administrative expenses increased $1.1
million for the six months ended June 30, 1998, primarily as a result of the
second quarter 1997 Sungold and Private Eyes acquisitions. As a percentage of
net sales, general and administrative expenses increased to 15.5% in 1998 from
11.5% in 1997. Shipping and warehousing expenses increased $600,000 in 1998 as
compared to the six months ended June 30, 1997. As a percentage of net sales,
shipping and warehousing expenses increased to 5.3% in 1998 from 2.9% in 1997.
Research and development expenses decreased $348,000 in the six months ended
June 30, 1998, primarily as a result of management's efforts to contain certain
costs. As a percentage of net sales, research and development expenses decreased
to 1.7% in 1998 from 3.2% in 1997. The increase in total operating expenses of
$1.1 million is the result of the Sungold and Private Eyes acquisitions during
the second quarter of 1997 which were partially offset by a reduction in
operating expenses resulting from the Company's cost-cutting measures.
Income (loss) from operations. The Company incurred a loss from operations
of $79,000 for the six months ended June 30, 1998 compared to income from
operations of $2,438,000 for the six months ended June 30, 1997.
Interest income (expense). Interest expense was $1,675,000 for the six
months ended June 30, 1998 compared with interest expense of $506, 000 for the
six months ended June 30, 1997 as a result of increased interest-bearing
borrowings.
Income tax provision (benefit). The Company's income tax benefit was zero
for the six months ended June 30, 1998 compared to an income tax provision of
$393,500 for the six months ended June 30, 1997. Differences from the federal
statutory income tax rate of 34% resulted from changes in the reserve against
certain tax assets.
Net income (loss). As a result of the items discussed above, the Company's
net loss was $1.7 million or $.22 per share for the six months ended June 30,
1998 compared to a net income of $1,538,000 or $.20 per share for the six months
ended June 30, 1997.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Historically, the Company has relied primarily on cash from operations,
borrowings and its initial public offering of common stock to finance its
operations. Cash used in the Company's operating activities totaled $2.9 million
and $10.4 million for the six months ended June 30, 1998 and 1997, respectively.
The Company reduced the cash used in operating activities in the first six
months of 1998 by $7.5 million compared to the first six months of 1997 by (i)
reducing the buildup of accounts receivable by $4.7 million, (ii) reducing net
inventories by $1.7 million in the first six months of 1998 compared to a $5.8
million increase in inventories in the first six months of 1997, (iii) reducing
the effect of changes in other assets and liabilities, primarily through a
decrease in expenditures on prepaid advertising costs and (iv) repaying $1.03
million in accounts payable and accrued expenses in 1998 as compared to
incurring $3.8 million in additional accounts payable and accrued expenses in
the similar period in 1997. Cash used in the Company's investing activities, to
fund acquisitions of property and equipment, totaled $70,000 and $1,163,000 for
the six months ended June 30, 1998 and 1997, respectively. The purchase
acquisitions of Sungold and Private Eyes required $19,686,139 of cash during the
six months ended June 30, 1997. Cash provided by the Company's financing
activities, primarily proceeds from bank debt, totaled $2.9 million and $27.2
million for the six months ended June 30, 1998 and 1997, respectively. As of
June 30, 1998, the Company had unused sources of liquidity of $2.0 million,
consisting of cash and cash equivalents of $798,000 and borrowings available
under its revolving loan of $1.2 million.
The Company has initiated certain cost reduction measures including the
consolidation of its office and warehouse space. During April 1998, the Company
vacated its Norwell, Massachusetts facility and negotiated a termination of the
Norwell lease, negotiated a termination of the lease for its warehouse facility
in Kent, Washington and negotiated an amendment to the lease for its Lynnwood,
Washington facility, thereby decreasing minimum future lease payments under
noncancelable operating leases from $8.9 million at December 31, 1997 to $1.8
million at June 30, 1998.
In January 1998, the Company restructured its credit agreement (the "Credit
Agreement") with its primary lender. The amended Credit Agreement consists of
(i) a revolving loan commitment of up to $14 million, secured by the assets of
the Company, (ii) a term loan of $16.47 million, also secured by the assets of
the Company and (iii) an equipment loan of $3.9 million, secured by the
equipment of the Company, resulting in approximately $5 million additional
availability to the Company, subject to certain collateral levels and covenants,
which include minimum tangible net worth, working capital, net sales, and EBIDTA
requirements, as well as ratios relating to debt coverages. The Credit Agreement
was further amended on March 31, 1998 to reschedule principal payments and to
revise financial covenants. The Credit Agreement was further amended on August,
13, 1998 to waive covenant defaults through July 30, 1998 and to revise
financial covenants for periods after July 31, 1998. The revised Credit
Agreement requires $8.8 million of principal payments due January 4, 1999, with
all remaining outstanding debt due April 1999. The Company believes that it is
unlikely it will be able to make such principal payments when due, absent the
Company obtaining additional financing.
The Company has had difficulty paying suppliers on a timely basis, and has
made arrangements with certain suppliers to provide for payment schedules for
past due amounts and to provide letters of credit for a portion of the purchase
price of future orders. Failure of operations or expense reduction efforts to
meet the Company's expectations, unanticipated expenses, loss of continued
cooperation of the Company's key suppliers or the bank, third-party claims or
adverse developments in pending litigation could result in additional cash
requirements that could be difficult or impossible to satisfy and could require
the Company to further reduce its operating expenditures, to curtail operations,
or to dispose of operating assets to enable it to continue operations. The
Company is exploring various options designed to maximize shareholder value,
including the possible sale of common or convertible preferred stock or
convertible debt securities to fund working capital and, in part, to finance the
January 1999 loan payment, but there can be no assurance that any such
transaction could be completed on a timely basis, on favorable terms or at all.
See "Forward-Looking Statements."
<PAGE>
SEASONALITY
The Company's net sales generally have been higher in the period from March
to September, the period during which sunglass purchases are highest. As a
result, operating income is typically lower in the first and fourth quarters as
fixed operating costs are spread over lower sales volume. See "Forward-Looking
Statements." The Company has experienced higher accounts receivable during March
through September as a result of higher sales during this period. The Company's
quarterly results of operations have fluctuated in the past and may continue to
fluctuate as a result of a number of factors, including seasonal cycles, the
timing of new product introductions, the timing of orders by the Company's
customers, the mix of product sales and the effects of weather conditions on
consumer purchases.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On November 22, 1996, the Company filed an action in the United States
District Court for the District of Massachusetts, under Case No. 996-12344RCL,
against Aearo Corporation, a Delaware corporation, alleging infringement of the
Company's toric curve lens utility patent. Both the Company and Aearo
Corporation filed summary judgment motions with the Court. On May 19, the Court
ruled in favor of the Company and found that product manufactured by Aearo
Corporation infringes the Company's toric curve patent. Aearo Corporation moved
for reconsideration of the Court's ruling on infringement, but Aearo's motion
for reconsideration was denied. Trial is expected to be scheduled for early
1999. The Company believes that the only significant issues left for trial
include whether the Company's patent was validly issued, and, if so, the extent
of damages to be awarded to the Company resulting from Aearo's patent
infringement. Any judgment awarded in favor of the Company would be subject to
appeal.
There have been no material changes in other legal proceedings reported in
the Company's 1997 Annual Report, as amended, on Form 10-K/A Amendment No. 1
filed with the Securities and Exchange Commission on April 15, 1998.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its annual meeting of shareholders on June 4, 1998. At the
annual meeting Class 1 Directors were up for election, and a Class 3 Director
was up for election as a result of resignations of Class 3 directors. The
following summarizes all matters voted on at the meeting:
Election of Directors For Withheld
Class 3 Director: Elected to serve
until the 2000 annual meeting
Robert G. Wolfe 6,366,608 56,890
Class 1 Directors: Elected to serve until
the 2001 annual meeting
Walter F. Walker 6,357,686 65,812
Timothy C. Potts 6,340,819 82,679
ITEM 5. OTHER INFORMATION
In July, the Company received notice from Nasdaq that a Nasdaq Listing
Qualifications Panel had determined to delist the Company's common stock from
the Nasdaq National Market for failure to meet Nasdaq's listing requirement with
respect to net tangible assets. Delisting was effective as of the close of
business July 13, 1998. The Company's common stock has continued to be quoted on
the Nasdaq's over-the-counter bulletin board.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
Exhibit 10.1 Lease Agreement dated June 8, 1998, by and between South Valley
Associates, as Landlord, and the Company, as Tenant.
Exhibit 10.2 Eighth Amendment to First Amended and Restated Credit Agreement
dated April 30, 1998 by and between U.S. Bank National
Association, successor by merger to U.S. Bank of Washington,
National Association, and Gargoyles, Inc.
Exhibit 27.1 Financial Data Schedule
(b) REPORTS ON FORM 8-K
Form 8-K with respect to the Company's decision to close its London office,
positive developments in the Company's litigation against Aearo Corporation, and
other matters was filed with the Securities and Exchange Commission on April 3,
1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Gargoyles, Inc.
(Registrant)
August 14, 1998 /s/ Leo Rosenberger
-------------------
Leo Rosenberger
Chief Executive Officer, Chief
Financial Officer and Treasurer
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
Exhibit 10.1 Lease Agreement dated June 8, 1998, by and between South
Valley Associates, as Landlord, and Gargoyles, Inc.,
as Tenant.
Exhibit 10.2 Eighth Amendment to First Amended and Restated
Credit Agreement dated April 30, 1998 by and between U.S.
Bank National Association, successor by merger to U.S. Bank
of Washington, National Association, and Gargoyles, Inc.
Exhibit 27.1 Financial Data Schedule
EXHIBIT 10.1
BASIC LEASE INFORMATION
-------------------------------------------------------------------------------
Lease Date: June 8, 1998
Landlord: SOUTH VALLEY ASSOCIATES
Address of Landlord: 11411 NE 124th St., Suite 150
Kirkland, WA 98034
Tenant: Gargoyles Inc., a Washington corporation
Premises: 22223 68th Avenue South, Building B
Kent, Washington 98032
Paragraph 1 Premises consisting of approximately 25,348 square feet
(consisting of 5,075 sf of office and 20,273 sf of warehouse) in
the Building "B" of approximately 83,755 square feet (computed
from measurements to the exterior of outside walls of the
building and to the center of interior walls), such premises
being shown and outlined in red on the plan attached hereto as
Exhibit A, and being part of the real property described in
Exhibit B attached hereto.
Paragraph 1 Lease Term: Commencing on the "Commencement Date" as hereinafter
defined and ending thirty six (36) months thereafter except that
in the event the Commencement Date is a date other than the first
day of a calendar month, said term shall extend for said number
of months in addition to the remainder of the calendar month
following the Commencement Date.
Paragraph 1 Scheduled Term Commencement Date: August 1, 1998
Paragraph 2 Monthly Base Rent: Months Rent
------ ----
1-36 $10,750.00
Paragraph 2B Security Deposit: First Payment: $13,411.54
Security Deposit: Second Payment due on or
before August 1, 1998: $13,411.54
Paragraph 4A Tenant' Initial Monthly Escrow Payment for Taxes and Other
Charges: $1,365.00
Paragraph 7 Tenant's Initial Monthly Common Area Maintenance Charge:
$1,167.00
Paragraph 14B Tenant's Initial Monthly Insurance Escrow Payment: $131.00
Tenant's Initial Monthly Payment: $13,411.54
The foregoing Basic Lease Information is hereby incorporated into
and made a part of this Lease. Each reference in this lease to
any of the Basic Lease information shall mean the respective
information herein above set forth and shall be construed to
incorporate all of the terms provided under the particular Lease
paragraph pertaining to such information. In the event of any
conflict between any Basic Lease Information and the Lease the
former shall control.
<PAGE>
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between South Valley
Associates, herein after referred to as "Landlord", and, Gargoyles Inc., a
Washington corporation hereinafter referred to as "Tenant";
WITNESSETH
1. PREMISES AND TERM.
A. In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions and covenants
hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby
takes and leases from Landlord those certain Premises as outlined in red on
Exhibit "A" attached hereto (hereinafter referred to as the "Premises" and
incorporated herein by reference, together with all rights, privileges,
easements, appurtenances, and amenities belonging to or in any way
appertaining to the Premises and together with buildings and other
improvements situated or to be situated upon land described in Exhibit "B"
attached hereto.
B. To have and to hold the same for a term commencing on the "Commencement
Date:, as hereinafter defined and ending thereafter as specified in the
Basic Lease Information, attached hereto, (the "Lease Term"), provided,
however that, in the event the "Commencement Date" is a date other than the
first day of a calendar month, said term shall extend for said number of
months in addition to the remainder of the calendar month following the
"Commencement Date".
C. The "Commencement Date" shall be the Scheduled Term Commencement Date
shown in the Basic Lease Information attached hereto and incorporated
herein by reference.
D. Early termination option - See Exhibit "C".
E. Tenant Improvements - See Exhibit "D".
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord Base Rent for the Premises, in advance
without demand, deduction or set off, for the entire Lease Term hereof at
the rate specified in the Basic Lease Information, payable in monthly
installments. One such monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the Commencement
Date recited above during the Lease Term except that the rental payment for
any fractional calendar month at the commencement or end of the Lease
period shall be prorated on the basis of 30-day month.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof a
security deposit in the amount specified in the Basic Lease Information,
which sum shall be held by Landlord, without obligation for interest, as
security for the performance of tenant's covenants and obligation under
this Lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit, not the last month's rent nor a measure of
Landlord's damages in the event of Tenant's default. Upon the occurrence of
any event of default by Tenant, Landlord may, from time to time, without
prejudices to any other remedy provided herein or provided by law, use such
deposit to the extent necessary to make good any arrears of rent of other
payments due Landlord hereunder, and any other damage, injury, expense or
liability caused by such event of default; or to perform any obligation
required of Tenant under the Lease; and Tenant shall pay Landlord on demand
the amount so applied in order to restore the security deposit to its
original amount. Although the security deposit shall be deemed the property
of Landlord, any remaining balance of such deposit shall be returned by
Landlord to Tenant at such time after termination of this Lease that all of
tenant's obligations under this Lease have been fulfilled.
<PAGE>
3. USE.
A. The Premises shall be used only for the purpose of general office,
receiving, storing, shipping, assembly, light manufacturing, and selling
(other than retail) products, materials and merchandise made and/or
distributed by Tenant and for such other lawful purposes as may be
incidental thereto. Outside storage, including without limitation is
prohibited without Landlord's prior written consent. Tenant shall at its
own cost and expense obtain any and all licenses and permits necessary for
its use of the Premises. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Premises, and shall
promptly comply with all governmental orders and directives including but
not limited to those regarding the correction, prevention and abatement of
nuisances in or upon, or connected with, the Premises, all at Tenant's sole
expense. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise or vibrations to emanate from the Premises, nor
take any other action which would constitute a nuisance or would disturb or
endanger any other tenants of the building in which the Premises are
situated or unreasonably interfere with their use of their respective
Premises. In addition to any other remedies Landlord may have for a breach
by Tenant of the terms of this Section 3, Landlord shall have the right to
have Tenant evicted from the Premises should Tenant fail to abate the
nuisance or unreasonable interference with other Tenants. Without
Landlord's prior written consent, Tenant shall not receive, store or
otherwise handle any product, material or merchandise which is explosive or
highly inflammable. Tenant will not permit the Premises to be used for any
purpose or in any manner (including without limitation any method of
storage) which would render the insurance thereon void or the insurance
risk more hazardous or cause the State Board of Insurance or other
authority to disallow any sprinkler credits. In the event Tenant's use of
Premises shall result in an increase in insurance premiums, Tenant shall be
solely responsible for said increase.
B. With respect to any release of toxic or hazardous substance or wastes or
other condition of the Premises occurring on or after the date of the Lease
and caused by or resulting from the negligent acts or omissions or willful
misconduct of Tenant, its employees, authorized agents, or contractors, and
which release or other condition violates the provisions of or necessitates
any removal, treatment or other remedial action under, any past, present,
or future federal state or local statute or ordinance or any regulation,
directive, or requirement or any governmental authority with jurisdiction
relating to protection of the environment, Tenant agrees to defend,
indemnify, and hold harmless Landlord, its partners, employees, agents, and
contractors, from and against any and all losses, claims liabilities,
damages, demands, fines, costs, and expenses (including reasonable
attorney's fees and legal expenses) arising out of or resulting therefrom.
The provisions of this paragraph shall survive the termination or
expiration of this Lease and the surrender of the Premises by Tenant, with
respect to releases, events, or conditions occurring prior to such
termination, expiration, or surrender. With respect to any release of toxic
or hazardous substances or wastes or other condition of the Premises
occurring prior to the date of this Lease and caused by or resulting from
the negligent acts or omissions or willful misconduct of Landlord, its
employees, authorized agents, or contractors, and which release or
condition violates the provisions of, or necessitates any removal,
treatment, or other remedial action under, any past, present, or future
federal, state, or local statute or ordinance or any regulation,
requirement, or directive of any governmental authority with jurisdiction
relating to protection of the environment, Landlord agrees to defend,
indemnify, and hold harmless Tenant from and against any and all losses,
claims, liabilities, damages, demands, fines, costs, and expenses
(including reasonable attorney' fees and legal expenses) arising out of or
resulting therefrom.
<PAGE>
4. TAXES AND OTHER CHARGES
A. Tenant agrees to pay it proportionate share of any and all real and
personal property taxes, regular and special assessments, license fees,
public service impact fees and other charges of any kind and nature
whatsoever, payable by Landlord as a result of any public or quasi-public
authority, private party, or owner's association levy, assessment or
imposition against, or arising out of Landlord's ownership of or interest
in, the real estate described in Exhibit "B" attached hereto, together with
the building and the grounds, parking areas, driveways, roads, and alleys
around the building in which the Premises are located, or any part thereof
(hereinafter collectively referred to as the "Charges"). During each month
of the Lease Term, Tenant shall make a monthly escrow deposit with Landlord
(the "Escrow Payment") equal to 1/12 of its proportionate share of the
Charges which will be due and payable for that particular calendar year.
Any lump sum public service impact fees paid by Landlord shall be amortized
over ten (10) years at interest not to exceed the actual interest paid by
Landlord and equal installments of such fee, together with interest accrued
there on, shall be payable monthly as a portion of the Charges. Tenant
authorizes Landlord to use the funds deposited by Tenant with Landlord
under this Paragraph 4 to pay the Charges. Each Escrow Payment shall be due
and payable, as additional rent at the same time and in the same manner as
the payment of monthly rental as provided herein. The amount of the initial
Monthly Escrow Payment will be specified in the Basic Lease Information.
The initial Escrow Payment is based upon Tenant's proportionate share of
the estimated Charges for the year in question and the monthly Escrow
Payment is subject to increase or decrease as determined by the Landlord to
reflect an accurate escrow of Tenant's estimated proportionate share of the
Charges. The Escrow Payment account of Tenant shall be reconciled annually.
If the Tenant's total Escrow Payments are less than Tenant's actual pro
rata share of the Charges, tenant shall pay to Landlord upon demand the
difference; if the Tenant's total Escrow Payments are more than Tenant's
actual pro rata share of the Charges, Landlord shall retain such excess and
credit it to Tenant's Escrow Payment accounting for the successive year's
Charges. Tenant's proportionate share of the Charges shall be based on the
gross leasable square footage of the Building computed by multiplying the
Charges by a fraction, the numerator of which shall be the number of gross
leasable square feet of floor space in the Premises and the denominator of
which shall be the total applicable gross leasable square footage; or such
other equitable apportionment as may be adopted.
B. If Tenant should fail to pay any Escrow Payments required to be paid by
Tenant hereunder, in addition to any other remedies provided herein,
Landlord may, if it so elects, pay such Escrow Payments or taxes,
assessments, license fees and other charges. Any sums so paid by Landlord
shall be deemed to be so much additional rental owing by Tenant to Landlord
and due and payable upon demand as additional rental plus interest at the
rate of eighteen percent (18%) per annum from the date of payment by
Landlord until repaid by Tenant.
C. (1) If at any time during the Lease Term, the present method of taxation
shall be changed so that in lieu of the whole or any part of any taxes,
assessments, fees or charges levied, assessed or imposed on real estate and
the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received
therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents or the present or any future
building or buildings, then all such taxes, assessments, fees or charges,
or the part thereof so measured or based, shall be deemed to be included
within he term "Charges" for the purposes hereof.
<PAGE>
(2) Tenant may, alone or along with other tenants of the building
containing the Premises, at its sole cost and expense, in its or their own
name(s) dispute and contest any Charges by appropriate proceedings
diligently conducted in good faith, but only after Tenant and all other
Tenants, if any, joining with Tenant in such contest have deposited with
Landlord the amount so contested and unpaid or their proportionate shares
thereof as the case may be, which shall be held by Landlord without
obligation for interest until the termination of the proceedings, at which
time the amount(s) deposited shall be applied by Landlord toward the
payment of the items held valid (plus any court costs, interest, penalties
and other liabilities associated with the proceeding(s), and Tenant's share
of any excess shall be returned to Tenant. Tenant further agrees to pay to
Landlord upon demand Tenant's share (as among all Tenants who participated
in the contest) of all court costs, interest, penalties and other
liabilities relating to such proceedings. Tenant hereby indemnifies and
agrees to hold harmless the Landlord from and against any cost, damage or
expense (including attorney's fees) in connection with any such
proceedings.
(3) Any payment to be made pursuant to this Paragraph 4 with respect
to the calendar year in which this Lease commences or terminates shall bear
the same ratio to the payment which would be required to be made for the
full calendar year as that part of such calendar year by the Lease Term
bears to a full calendar year.
D. Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Premises. If any such taxes are
levied against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is increased
by inclusion of personal property and trade fixtures placed by Tenant in
the Premises and Landlord elects to pay the taxes based on such increase,
Tenant shall pay to Landlord upon demand that part of such taxes for which
Tenant is primarily liable hereunder.
5. TENANT'S MAINTENANCE
A. Tenant shall at its own cost and expense keep and maintain all parts of
the Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all
necessary repairs and replacements, including but not limited to, windows,
glass and plate glass, doors, any special office entry, interior walls and
finish work, floor and floor covering, downspouts, gutters, heating and
air-conditioning systems, dock boards, truck doors, dock bumpers, paving,
plumbing work and fixtures, termite and pest extermination, regular removal
of trash and debris, keeping the parking areas, driveways, alleys and the
whole of the Premises in a clean and sanitary condition. Tenant shall not
be obligated to repair any damage caused by fire, tornado, or other
casualty covered by the insurance to be maintained by Landlord pursuant to
subparagraph 14(A) below, except that tenant shall be obligated to repair
all wind damage to glass except with respect to tornado or hurricane
damage.
B. Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall at its sole cost and
expense, promptly repair any damage or injury to any demising wall caused
by Tenant or its employees, agents, licensees or invites.
C. Tenant and its employees, customers and licensees shall have the right
to use the parking areas, if any, as may be designated by Landlord in
writing, subject to such reasonable rules and regulations as Landlord may
from time to time prescribe and subject to right of ingress and egress of
other tenants. Landlord shall not be responsible for enforcing Tenant's
exclusive parking rights against any third parties. If Tenant or any other
particular tenant of the building can be clearly identified as being
responsible for obstructions or stoppage of a common sanitary sewage line,
then Tenant, if Tenant is responsible, or such other responsible Tenant,
shall pay the entire cost thereof, upon demand, as additional rent.
<PAGE>
D. Landlord shall, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing
all heating and air-conditioning systems and equipment with the Premises.
6. LANDLORD'S REPAIRS. After reasonable notice from Tenant, Landlord shall
repair the roof, exterior walls and foundations, and the cost thereof shall be
shared as provided in Paragraph 7. Tenant shall repair and pay for any damage to
such items to be maintained by Landlord caused by any act, omission or
negligence of Tenant, or Tenant's employees, agents, licensees or invitees, or
caused by Tenant's default hereunder. The term "walls" as used herein shall not
include windows, glass or plate glass, doors, special store fronts or office
entries. Tenant shall immediately give Landlord written notice of defect or need
for repairs, after which Landlord shall have a reasonable opportunity and time
to repair same or cure such defect. Landlord's liability with respect to any
defects, repairs or maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of such repairs or
maintenance for the curing of such defect.
7. MONTHLY COMMON-AREA MAINTENANCE CHARGE. Tenant agrees to pay, as an
additional charge each month, its proportionate share of the cost of operation
and maintenance of the Common Area which shall be defined from time to time by
Landlord. Common Area costs as normally charged in the market, which may be
incurred by Landlord, at its discretion, shall include, but not be limited to
costs incurred for lighting, water, sewage, trash removal, exterior painting,
exterior window cleaning, accounting, policing, sweeping, services negotiation,
customary property management fee not to exceed 5% of rentals, sewer lines,
plumbing, paving, landscape maintenance, plant material replacement and other
like charges, and for administration of the items set forth in this paragraph.
Landlord shall maintain the Common Areas in reasonably good condition and
repair. The proportionate share to be paid by tenant of the cost of operation
and maintenance of the Common Area shall be computed on the ratio that the gross
leasable square feet of the Premises bears to the total applicable gross
leasable square footage or such other equitable apportionment as may be adopted.
Landlord shall make monthly or other periodic charges based upon the estimated
annual cost of operation and maintenance of the Common Area, payable in advance
but subject to adjustment after the end of the year on the basis of the actual
cost for such year. Any such periodic charges shall be due and payable upon
delivery of notice thereof. The initial Common-Area Maintenance Charges, subject
to adjustment as provided herein, shall be due and payable, as additional rent,
at the same time and in the same manner as the time and manner of the payment of
monthly rental as provided herein. The amount of the initial monthly Common-Area
Maintenance Charge shall be as specified in the basic Lease Information.
8. RENTAL ADJUSTMENT
Intentionally deleted
9. ALTERATIONS.
A. Tenant shall not make any alterations, additions or improvements to the
Premises (including but not limited to roof and wall penetrations) without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant may, without the consent of
Landlord, but at its own cost and expense and in a good workmanlike manner
erect such shelves, bins, machinery and trade fixture as it may deem
advisable, without altering the basic character of the building or
improvements and without overloading or damaging such building or
improvements, and in each case complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and
remain the property of Tenant during the Term of the Lease and Tenant
shall, unless Landlord otherwise elects as hereinafter provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to their original condition by the date of termination
of this Lease or upon earlier vacating of the Premises provided, however,
that if Landlord so elects prior to termination of this Lease or upon
earlier vacating of the Premises that such alterations, additions,
improvements and partitions shall become the property of Landlord as of the
date of termination of this Lease or upon earlier vacating of the Premises
and shall be delivered up to the Landlord with the Premises. All shelves,
bins, machinery and trade fixtures installed by Tenant may be removed by
Tenant prior to the termination of this Lease if Tenant so elects, and
shall be removed by the date of termination of this Lease or upon earlier
vacating of the Premises if required by Landlord; upon any such removal
tenant shall restore the Premises to their original conditions. All such
removals and restoration shall be accomplished in good workmanlike manner
so as not to damage the primary structure or structural qualities of the
buildings and other improvements situated on the Premises
<PAGE>
B. Tenant shall remove any sumps and clarifiers and any related Hazardous
Materials ("Hazardous Materials" shall mean petroleum and petroleum
products, asbestos, and PCBs and any "hazardous substances", "hazardous
materials", or "toxic substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Hazardous
Materials Transportation Act, as amended, or the Resource Conservation and
Recovery Act, as amended, those substances, materials and wastes which are
defined as "hazardous wastes" or as "hazardous substances" in the
Washington Health and Safety Code or Labor Code, and "hazardous" or "toxic"
in the regulations adopted or publication promulgated pursuant to any of
said laws) in or about the Premises and associated with Tenant's use and
occupancy thereof upon the expiration or earlier termination of this Lease.
C. Notwithstanding anything to the contrary contained herein, Landlord
agrees that the Tenant shall not be responsible for, and Landlord shall
hold Tenant harmless against, any costs of cleanup or removal arising from
or associated with any hazardous material existing in, on or throughout the
Premises, as of the date Tenant occupies the Premises pursuant to the terms
of this Lease,
10. SIGNS. Tenant shall not install signs upon the Premises without Landlord's
prior written approval, which approval shall not be unreasonably withheld
or delayed, and any such signage shall be subject to any applicable
governmental laws, ordinances, regulations and other requirements. Tenant
shall remove all such signs by the termination of this Lease. Such
installations and removals shall be made in such a manner as to avoid
injury or defacement of the building and other improvements, and tenant
shall repair any injury or defacement, including without limitation
discoloration caused by such installations and/or removal.
11. INSPECTION.
A. Landlord and Landlord's agents and representatives shall have the right
to enter and inspect the Premises at any reasonable time during business
hours, for the purpose of ascertaining the condition of the Premises or in
order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease. During the period that is six (6)
months prior to the end of the Term hereof, Landlord and Landlord's agents
and representatives shall have the right to enter the Premises at any
reasonable time during business hours for the purpose of showing the
Premises and shall have the right to erect on the Premises a suitable sign
indicating the Premises are available.
B. Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with Landlord for
a joint inspection of the Premises prior to vacating. In the event of
Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the Premises shall be
conclusively deemed correct for the purposes of determining Tenant's
responsibility for repairs and restoration. It shall be the responsibility
of Tenant, prior to vacating the Premises, to clean and repair the Premises
and restore them to the condition in which they were in upon delivery of
the Premises to Tenant at the Commencement Date, reasonable wear and tear
excepted. Cleaning, repair and restoration shall include, but not be
limited to, removal of all trash, cleaning and repainting of walls, where
necessary, cleaning of carpet and flooring, replacement of light bulbs and
tubes, cleaning and wiping down of all fixtures, maintenance and repair of
all heating and air-conditioning systems, and all similar work, which shall
be done at the latest practical date prior to vacation of the Premises.
12. UTILITIES. Landlord agrees to provide at its cost water, electricity and
gas service connections into the Premises; but Tenant shall pay for all
water, gas, heat, light, power, telephone, sewer, sprinkler charges and
other utilities and services used on or from the premises, together with
any taxes, penalties, surcharges or the like pertaining thereto and any
maintenance charges for utilities and shall furnish all electric light
bulbs and tubes. If any such services are not separately metered to Tenant,
<PAGE>
Tenant shall pay a reasonable proportion as determined by Landlord of all
charges jointly metered with other Premises. Landlord shall in no event be
liable for any interruption or failure of utility services on the Premises.
13. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right, voluntarily or involuntarily, to
assign, convey, transfer, mortgage or sublet the whole or any part of the
Premises under this Lease without the prior written consent of Landlord. In
the event Tenant applies to Landlord for consent to assign, convey,
transfer or sublet the Premises, Landlord may condition such consent upon
the right to receive one-half of the profit, if any, which Tenant may
realize on account of such assignment, conveyance, transfer or sublease of
the Premises. For purposes of this paragraph, "profit" shall mean any sum
which the assignee, sublessee or transferee is required to pay, or which is
credited to Tenant as rent in excess of the rents required to be paid by
Tenant to Landlord under this Lease. Landlord also reserves the right to
recapture the Premises or applicable portion thereof in lieu of giving its
consent by notice given to Tenant within twenty (20) days after receipt of
Tenant's written request for assignment or subletting. Such recapture shall
terminate this Lease as to the applicable space effective on the
prospective date of assignment or subletting, which shall be the last day
of a calendar month and not earlier than sixty (60) days after receipt of
Tenant's request hereunder. In the event that Landlord shall not elect to
recapture and shall thereafter give its consent, Tenant shall pay Landlord
$500.00, to reimburse Landlord for processing and leasing costs incurred in
connection with such consent.
B. Notwithstanding any permitted assignment or subletting, Tenant shall at
all times remain directly, primarily and fully responsible and liable for
the payment of the rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this Lease.
Upon the occurrence of an "event of default" as hereinafter defined, if the
Premises or any part thereof are then assigned or sublet, Landlord, in
addition to any other remedies herein provided or provided by law, may at
its option collect directly from such assignee or subtenant all rents
becoming due to Tenant under such assignment, transfer or sublease and
apply such rent against any sums due to Landlord from Tenant hereunder and
no such collection shall be construed to constitute a novation or a release
of Tenant from the further performance of Tenant's obligations hereunder.
14. INSURANCE, FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of which the
Premise are a part in the amount not less than eighty percent (80%) (or
such greater percentage as may be necessary to comply with the provisions
of any co-insurance clauses of the policy) of the "replacement costs"
thereof as such term is defined in the Replacement Cost Endorsement to be
attached thereto, insuring against the perils of Fire, Lightning, Extended
Coverage, Vandalism and Malicious Mischief, extended by Special Extended
Coverage Endorsement to insure against all other Risks of Direct Physical
Loss, such coverages and endorsements to be as defined, provided and
limited in the standard bureau forms prescribed by the insurance regulatory
authority for the State in which the Premises are situated for use by
insurance companies admitted in such state for the writing of such
insurance on risks located within such state. Subject to the provisions of
subparagraph 14, C, D, E below, such insurance shall be for the sole
benefit of Landlord and under its sole control. In the event the insurance
policy shall contain a deductible, Tenant shall be liable for and pay any
deductible withheld from insurance proceeds or payable under the terms of
the insurance policy in the event of acclaim or insured loss thereunder.
<PAGE>
B. Tenant agrees to pay its proportionate share of Landlord's cost of
carrying fire and extended coverage insurance ("Insurance") on the
building. During each month of the term of this Lease, Tenant shall make a
monthly escrow deposit with Landlord equal to one-twelfth of its
proportionate share of the insurance on the buildings and grounds which
will be due and payable for that particular year. Tenant authorizes
Landlord to use the funds deposited by him with Landlord under this
paragraph to pay the cost of such Insurance. Each Insurance escrow Payment
shall be due and payable, as additional rent, at the same time and manner
of the payment of the monthly rental as provided herein. The initial share
of the estimated insurance for the year in question, and the monthly
Insurance Escrow Payment is subject to increase or decrease as determined
by Landlord to reflect an accurate monthly escrow of Tenant's estimated
proportionate share of this Insurance. The Insurance Escrow Payment account
of Tenant shall be reconciled annually. If the Tenant's total Insurance
Escrow Payments are less than Tenant's actual pro rata share of the
Insurance, Tenant shall pay to Landlord upon demand the difference; if the
total Insurance Escrow Payments of Tenant are more than Tenant's actual pro
rata share of the Insurance Landlord shall promptly refund the balance of
such excess to Tenant after first crediting the excess to the next monthly
payment by Tenant for its proportionate share of taxes and Insurance.
Tenant's cost of Insurance shall be computed by multiplying the cost of
insurance by a fraction, the numerator of which shall be the number of
gross leasable square feet of floor space in the Premises and the
denominator of which shall be the total applicable gross leasable square
footage. The amount of the initial monthly Insurance Escrow Payment will be
as specified in the Basic Lease information.
C. If the building, of which the Premises are a part, should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
D. If the building, of which the Premises are a part, should be totally
destroyed by fire, tornado or other casualty, or if it should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be
completed within two hundred (200) days after the date upon which Landlord
is notified by Tenant of such damage, this Lease shall terminate and the
rent shall be abated during the unexpired portion of this Lease, effective
upon the date of the occurrence of such damages. Landlord shall give notice
to Tenant in writing of its determination to terminate this Lease within
ninety (90) days following the date of the occurrence of such damage.
E. If the building, of which the Premises are a part, should be damaged by
any peril covered by the insurance to be provided by Landlord under
subparagraph 14(a) above, but only to such extent that rebuilding repairs
can in Landlord's estimation be completed within two hundred (200) days
after the date upon which Landlord is notified by Tenant of such damage,
this Lease shall not terminate, and Landlord shall at its sole cost and
expense thereupon proceed with reasonable diligence to rebuild and repair
such building to substantially restore the condition in which it existed
prior to such damage except that Landlord shall not be required to rebuild,
repair or replace any part of the partition, fixtures, additions and other
improvements which may have been placed in, or about the Premises by
Tenant. If the Premises are untenantable in whole or in part following such
damage, the rent payable hereunder during the period in which they are
untenantable shall be reduced to such extent as may be fair and reasonable
under all of the circumstances. In the event that Landlord shall fail to
complete such repairs and rebuilding within two hundred (200) days after
the date upon which Landlord is notified by Tenant of such damage, Tenant
may at its option terminate this Lease by delivering written notice of
termination at Tenant's exclusive remedy, whereupon, all rights and
obligations hereunder shall cease and terminate.
<PAGE>
F. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the
Premises required that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate.
G. Waiver of Subrogation. Landlord and Tenant hereby waive any right and
release each other for any loss or damage to property caused by fire or any
other perils insured in policies of insurance covering such property, even
if such loss or damage shall have been caused by the fault or negligence of
the other party, or anyone for whom such party may be responsible, by way
of subrogation or otherwise. Provided however, this release shall be
applicable, and in force and effect, only with respect to loss or damage
occurring during such times as the parties each having had their respective
insurance companies issue an insurance policy that contains a clause or
endorsement to the effect that any such release shall not adversely affect
or impair said policies or prejudice the right of the releaser to recover
thereunder; and then, only to the extent of the insurance proceeds payable
under such policies. Each of the Landlord and Tenant agrees that it will
request its insurance carriers to include in its policies such a clause or
endorsement. If extra cost shall be charged therefor, each party shall
advise the other thereof and of the amount of the extra cost, and the other
party, at its election, may pay the same, but shall not be obligated to do
so.
15. LIABILITY. Landlord shall not be liable to Tenant or Tenant's employees,
agents, servants, guests, invitees or visitors, or to any other person
whomsoever, for any injury to person or damage to property on or about the
Premises, resulting from and/or caused in part or whole by the negligence
or misconduct of Tenant, its employees, agents, servants, guests, invitees
or visitors, or of any other person entering upon the Premises, or caused
by the building and improvements located on the Premises becoming out of
repair, or caused by leakage of gas, oil, water or steam or by electricity
emanating from the Premises, or due to any cause whatsoever, and Tenant
hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation
the trustee and beneficiaries if Landlord is a trust), Landlord's
employees, agents, servants, guests, invitees and visitors from any loss,
liability, claims, suits, costs, expenses, including without limitation
attorney's fees and damages, both real and alleged, arising out of any such
damage or injury; except injury to persons or damage to property the sole
cause of which is the gross negligence of Landlord or the failure of
Landlord to repair any part of the Premises which Landlord is obligated to
repair and maintain hereunder within a reasonable time after the receipt of
written notice from Tenant of needed repairs. Tenant's obligation to
indemnify Landlord under this Paragraph 15 includes an obligation to
indemnify for losses resulting from death or injury to Tenant's employees
and Tenant accordingly hereby waives any and all immunities it now has or
hereafter may have under any Industrial Insurance Act, or other worker's
compensation, disability benefit or other similar act which would otherwise
be applicable in the case of such a claim. Tenant shall procure and
maintain throughout the term of this Lease a policy or policies of
Insurance, at its sole cost and expense, insuring both Landlord and Tenant
against all claims, demands or actions arising out of or in connection
with: (i) the Premises; (ii) the condition of the Premises; (iii) Tenant's
operations and maintenance and use of the Premises; and (iv) Tenants
liability assumed under this Lease, the limits of such policy or policies
to be in the amount of not less than $1,000,000 per occurrence in respect
of injury to persons (including death) and in respect to property damage or
destruction, including loss of use thereof. All such policies shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of such policies, together with receipt
evidencing payment of premiums therefor, shall be delivered to Landlord
prior to the Commencement Date of this Lease. Not less than fifteen (15)
<PAGE>
days prior to the expiration date of any such policies, certified copies of
the renewals thereof (bearing notations evidencing the payment of renewal
premiums) shall be delivered to Landlord. Such policies shall further
provide that not less than thirty (30) days written notice shall be given
to Landlord before such policy may be canceled or changed to reduce
insurance provided thereby.
16. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken for
any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use
of the Premises for the purpose for which they are being used, the Lease
shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking of said Premises shall
occur.
B. If part of the Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance, regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and this Lease is
not terminated as provided in the subparagraph above, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of
this Lease shall be reduced to such extent as may be fair and reasonable
under all of the circumstances
C. In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive the entire award. Tenant shall be
entitled to make a claim in any condemnation proceedings which does not
reduce the amount of Landlord's award, for the value of any furniture,
furnishings and fixtures installed by and at the sole expense of Tenant.
17. HOLDING OVER. Tenant will, at the termination of this Lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Landlord
agrees in writing that tenant may hold over after the expiration or
termination of this Lease, unless the parties hereto otherwise agree in
writing on the terms of such holding over, the hold over tenancy shall be
subject to termination by Landlord at any time upon not less than five (5)
days advance written notice or by Tenant at any time upon not less than
thirty (30) days advance written notice, and all of the other terms and
provisions of this Lease shall be applicable during that period, except
that Tenant shall pay Landlord from time to time upon demand, as rental for
the period of any hold over, an amount equal to one and one-half (1 1/2 the
Base Rent in effect on the termination date, plus all additional rental as
defined herein, computed on a daily basis for each day of the hold over
period. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this paragraph 17 shall not be
construed as Landlord's consent for Tenant to hold over.
18. QUIET ENJOYMENT. Landlord covenants that it now has, or will acquire before
Tenant takes possession of the Premises, good fee or leasehold title to the
Premises, free and clear of all liens and encumbrances, excepting only the
lien for current taxes not yet due, such mortgage or mortgages as are
permitted by the terms of this Lease, zoning ordinances and other building
and fire ordinances and governmental regulations relating to the use of
such property, and easements, restrictions and other conditions of record.
In the event this Lease is a sublease, then Tenant agrees to take the
Premises subject to the provisions of the prior leases. Landlord represents
and warrants that it has full right and authority to enter into this Lease
and that Tenant, upon paying the rental herein set forth and performing its
other covenants and agreements herein set forth, shall peaceably and
quietly have, hold and enjoy the Premises for the term hereof without
hindrance or molestation from Landlord, subject to the terms and provisions
of this Lease.
19. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this Lease:
A. Tenant shall fail to pay for any installment of the rent herein reserved
when due, or any payment with respect to taxes hereunder when due, or any
<PAGE>
other payment or reimbursement to Landlord required herein when due, and
such failure shall continue for a period of five (5) days from the date
such payment was due.
B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of
the United States or any State thereof; or Tenant shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially all of
the assets of Tenant.
E. Tenant shall desert or vacate any substantial portion of the Premises.
F. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than the foregoing in this Paragraph 19), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant
or take immediate steps to cure such failure and to cure such failure
within a reasonable period of time.
20. REMEDIES. Upon the occurrence of any such events of default described in
Paragraph 19 hereof, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever.
A. Intentionally Deleted
B. Terminate this Lease, in which event Tenant shall immediately surrender
the Premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearage in rent, take possession of the Premises as provided under
Washington State law. Tenant agrees to pay to Landlord on demand the amount
of all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises on
satisfactory terms or otherwise.
C. Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, by the use of such force as is lawful, without being liable for
prosecution or any claim for damages therefor, and relet the Premises for
such terms ending before, on or after the expiration date of the Lease Term
at such rentals and upon such other conditions (including concessions and
prior occupancy periods) as would be reasonable under the circumstances,
and receive the rent therefor. Tenant agrees to pay to the Landlord on
demand any deficiency that may arise by reason of such reletting. Landlord
shall take reasonable steps to relet the Premises or any part thereof but
Landlord shall not be liable for refusal or failure to relet or in the
event of reletting for refusal or failure to collect any rent due upon such
reletting. In the event Landlord is successful in reletting the Premises at
a rental in excess of that agreed to be paid by Tenant pursuant to the
terms of this Lease, Landlord and Tenant each mutually agree that Tenant
shall not be entitled, under any circumstances, to such excess rental, and
Tenant does hereby specifically waive any claim to such excess rental.
D. Enter upon the Premises, by reasonable force if necessary, without being
liable for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; Tenant agrees to
reimburse Landlord on demand for any reasonable expenses which Landlord may
incur in thus effecting compliance with Tenant's obligations under this
Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action, whether caused by the
negligence of Landlord or otherwise.
<PAGE>
E. Whether or not Landlord retakes possession or relets the Premises,
Landlord shall have the right to recover unpaid rent and all damages caused
by Tenant's default, including attorney's fees. Damages shall include, but
which shall not necessarily be limited to, all rents lost, all reasonable
legal expenses and other related costs incurred by Landlord following
Tenant's default, all costs incurred by Landlord in restoring the Premises
to good order and condition, or in remodeling, renovation or otherwise
preparing the Premises or reletting, all reasonable costs (including any
brokerage commissions and the value of Landlord's time) incurred by
Landlord, plus interest thereon from the date of expenditure until fully
repaid at the rate of eighteen percent (18%) per annum.
F. In the event Tenant fails to pay an installment of rent, additional rent
or other charges hereunder as and when such installment is due, to help
defray the additional cost to Landlord for processing such late payments
Tenant shall pay to Landlord on demand a late charge in an amount equal to
five percent (5%) of such installment; and the failure to pay such amount
within ten (10) days after demand therefor shall be an event of default
hereunder. The provision for such late charge shall be in addition to all
of Landlord's other rights and remedies hereunder or at law and shall not
be construed as liquidated damages or as limiting Landlord's remedies in
any manner. Any and all late rent shall bear an eighteen percent (18%)
interest rate.
G. Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by
law, such remedies being cumulative and non-exclusive, nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent
due to Landlord hereunder or of any damages accruing to Landlord by reason
of the violation of any of the terms, provisions and covenants herein
contained. No act or thing done by the Landlord or its agents during the
Lease Term hereby granted shall be deemed a termination of this Lease or an
acceptance of the surrender of the premises, and no agreement to terminate
its Lease or accept a surrender of said Premises shall be valid unless in
writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other violation or
breach of any item of the terms, provisions and covenants herein contained.
Landlord's acceptance of the payment of rental or other payments hereunder
after the occurrence of an event of default shall not be construed as a
waiver of such default unless Landlord so notifies Tenant in writing.
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default or of Landlord's right to enforce any
such remedies with respect to such default or any subsequent default. If,
on account of any breach or default by Tenant in Tenant's obligations under
the terms and conditions of this Lease, it shall become necessary or
appropriate for Landlord to employ or consult with an attorney concerning
or to enforce or defend any of Landlord's rights or remedies hereunder,
Tenant agrees to pay any reasonable attorney's fees so incurred.
21. LANDLORD'S LIEN. Intentionally Deleted
22. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage (s) and/or deed (s) of trust now or at any time hereafter
constituting a lien or charge upon the Premises or the improvements
situated thereon. At the request of Landlord, Tenant shall promptly
execute, acknowledge and deliver, all instruments which may be required to
subordinate this Lease to any existing or future mortgages, deeds of trust
and/or other security documents on or encumbering the Premises or on the
leasehold interest held by Landlord, provided that the mortgagee or
beneficiary, as the case may be, shall agree to recognize this Lease in the
event of a default by Landlord.
<PAGE>
23. LANDLORD'S DEFAULT. In the event Landlord should become in default in any
payment due on any such mortgage described in Paragraph 21 hereof or in the
payment of taxes or any other item which might become a lien upon the
Premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease, Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant;
provided, however, that Tenant shall not be authorized and empowered to
make any payment under the terms of Paragraph 23 unless the item paid shall
be superior to Tenant's interest hereunder. In the event Tenant pays any
mortgage debt in full, in accordance with this paragraph, it shall, at its
election, be entitled to the mortgage security by assignment or
subrogation.
24. MECHANICS LIENS. Tenant shall have no authority, express or Implied, to
create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the Premises or
to charge the rentals payable hereunder for any claim in favor of any
person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall
affect and each such lien shall attach to, if at all, only the leasehold
interest granted to Tenant by this instrument. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it
on account of any labor performed or materials furnished in connection with
any work performed on the Promises on which any lien is or can be validly
and legally asserted against its leasehold interest in the Premises or the
improvements thereon and that it will save and hold Landlord harmless from
any and all loss, cost or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the right, title
and interest of the Landlord in the Premises or under the terms of this
Lease.
25. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending,
mailing or delivery of any notice or the making of any payment Tenant or
Landlord shall be deemed to be complied with when and if the following
steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth
or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall
not be deemed satisfied until such rent and other amounts have been
actually received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address hereinbelow set forth or at such other
address within the continental United States as tenant may specify from
time to time by written notice delivered in accordance herewith.
<PAGE>
C. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
South Valley Associates Gargoyles, Inc.
11411 N.E. 124th Street, Suite 150 5866 South 194th Street
Kirkland, Washington 98034 Kent, Washington 98032
Phone: (206) 823-1191 Phone: (425) 921-3600
If and when included within the term "Landlord" as used in this instrument,
there are more than one person, firm or corporation, all shall jointly
arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of
notices and payments to Landlord: if and when included within the term
"Tenant", as used in this instrument there are more than one person, firm
or corporation, all shall jointly arrange among themselves for their joint
execution of such a notice specifying some individual at some specific
address within the continental United States for the receipt of notices and
payments to Tenant. All parties included within the terms "Landlord" and
"Tenant", respectively, shall be bound by notices given in accordance with
the provisions of this paragraph to the same effect as if each had received
such notice.
26. SUBSTITUTION SPACE.
A. Landlord shall have the right at any time from the date hereof through
the end of the term of this Lease or any renewal or extension hereof, to
substitute, instead of the leased Premises, other space (of approximately
the same area as the leased Premises) hereinafter referred to as
"Substitution Space," in the Building.
B. If Landlord desires to exercise such right, it shall give Tenant at
least one hundred and twenty (120) days prior written notification that
Tenant is to relocate to another space. Tenant shall then give Landlord
written notice within ten (10) days of receipt of Landlord's notification
whether Tenant agrees to relocate, or whether Tenant elects to terminate
the Lease and vacate the Premises as of the one hundred and twentieth
(120th) day following the date of Landlord's notification. Should Tenant
fail to give Landlord written notice within ten (10) days of receipt of
Landlord's notification, then Tenant shall be deemed to have elected to
terminate, and this Lease shall automatically terminate one hundred and
twenty (120) days following the date of Landlord's notification. If Tenant
shall retain possession of the Premises or any part thereof following the
termination date, Tenant shall be liable to Landlord, for each day of such
retention, for double the amount of the daily rental for the last period
prior to the date of such expiration or termination, subject to rent
adjustments as provided in Paragraph 27, plus actual damages incurred by
Landlord resulting from delay by tenant in surrendering the Premises,
including without limitation any claims made against Landlord by any
succeeding Tenant to the Premises and Landlord's costs in taking any action
at law, in equity or self help to evict Tenant from the Premises.
<PAGE>
C. If Tenant elects to move to the Substitution Space, such move shall be
at the sole cost of Landlord including all costs and expenses related to
improving the space with leasehold improvements equal to those then in
Tenant's Premises, moving the furniture, office equipment and other
contents of the Premises to the new space, reinstating telecommunications
equipment, printing of new stationery, business cards and other printed
matter bearing the address of Tenant of the same quality and quantity as
Tenant's existing inventory and such other reasonable expenses as tenant
may incur, it being the intention of the parties that tenant incur no costs
or expenses as a result of the move. After such move, all terms, covenants,
conditions, provisions, and agreements of this Lease shall continue in full
force and effect and shall apply to the Substitution Space except that (a)
if the then unexpired balance of the term of the Lease shall be less than
one year, the term of this Lease shall be extended so that the unexpired
balance of the term of this Lease shall be one year from the date of the
move and (b) if the Substitution Space contains more square footage than
the presently leased Premises, the monthly rental shall be increased
proportionately (provided that such rental increase shall not be in excess
of five percent (50/6) of the rental immediately preceding such an
increase).
27. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners or other appropriate documentation evidencing the due
authorization of such part to enter into this Lease.
C. The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this
Lease.
D. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date
to which rent has been paid, the unexpired term of this Lease and such
other matters pertaining to this Lease as may be requested by Landlord. It
is understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
E. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and
all obligations concerning the condition of the Premises. Upon the
expiration or earlier termination of the Term hereof and prior to Tenant
vacating the premises, Tenant shall pay to Landlord an amount reasonably
estimated by Landlord as necessary to put the Premises, including without
limitation all heating and air-conditioning systems and equipment therein,
in good condition and repair pursuant to Paragraph 11(B) hereof. Tenant
shall also, prior to vacating the Premises, pay to Landlord the amount, as
estimated by Landlord, of Tenant's obligation hereunder or real estate
taxes and insurance premiums for the year in which the Lease expires or
<PAGE>
terminates. All such amounts shall be used and held by Landlord for payment
of such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and
satisfied, as the case may be. Any security deposit held by Landlord shall
be credited against the amount payable by Tenant under this Paragraph 26
(F).
G. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of
this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of its Lease shall not be affected thereby, and
it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added as part of this Lease contract a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause of provision as may be possible and be legal, valid and enforceable.
H. Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer with the Promises being
subject to prior lease and such offer subject to withdrawal or
non-acceptance by Landlord or to other use of the Premises without notice,
and this Lease shall not be valid or binding unless and until accepted by
Landlord in writing and a fully executed copy delivered to both parties
hereto.
l. All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
J. During the term of this Lease and any subsequent option periods,
Landlord shall have the right to request and obtain Tenant's current
financial statements with reasonable advance notice. Tenant shall comply
with Landlord's request for financial statements in a reasonable time frame
not to exceed thirty (30) days from the date of request. Landlord agrees to
protect any such financial statements released to Landlord on a
"confidential" basis.
28. LIABILITY OF LANDLORD. Tenant agrees that no trustee, officer, employee,
agent or individual partner of Landlord, or its constituent entitles, shall
be personally liable for any obligation of Landlord hereunder, and that
Tenant must look solely to the interests of Landlord, or its constituent
entitles in the subject real estate, for the enforcement of any claims
against Landlord arising hereunder.
29. ADDITIONAL PROVISIONS.
LANDLORD: TENANT
s/ Peter Richard Henning S/ Leo Rosenberger
- ------------------------------ ---------------------------------
Peter Richard Henning Leo Rosenberger
General Partner Chief Executive Officer
Chief Financial Officer
<PAGE>
CORPORATE ACKNOWLEDGMENT:
State of _____________________ )
) ss.
County of ____________________ )
On this ______ day of ______________, 19__ before me personally
appeared _____________ to me known to be the ______ of the corporation, that
executed the within and foregoing instrument and acknowledged the same
instrument to be the free and voluntary act and deed of said corporation, for
the uses and purposes therein mentioned, and on oath stated that they were
authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first written above.
Signature: __________________________________
Print Name: _________________________________
Notary Public in and for the
State of ________________________
Residing in _____________________
My appointment expires __________
CORPORATE ACKNOWLEDGMENT:
State of Washington )
) ss.
County of King )
On this 11th day of June, 1998 before me personally appeared
_____________ to me known to be the individual or individuals, described in and
who executed the within and foregoing instrument, and acknowledged that he
signed same as his free and voluntary act and deed, for the uses and purposes
therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first written above.
Signature: s/ Cynthia L. Pope
Print Name: Cynthia L. Pope
Notary Public in and for the
State of Washington
Residing in Bellevue
My appointment expires 6-10-2001
<PAGE>
State of Washington )
) ss.
County of King )
I, the undersigned, a notary public in and for the State of Washington,
hereby certify that on this 16th day of June, 1998, personally appeared before
me Peter Richard Henning known to be the individual described in and who
executed the foregoing instrument, and acknowledged that he/she signed same as
his/her free and voluntary act and deed, for the uses and purposes therein
mentioned.
WITNESS my hand and official seal hereto affixed the day and year first
written above.
(SEAL) S/ Yvonne M. Nelson
Notary Public in and for the
State of Washington, residing at Bothell
State of _____________________ )
) ss.
County of ____________________ )
I, the undersigned, a notary public in and for the State of
___________, hereby certify that on this ____ day of _________, 1998 personally
appeared before me _______________ known to be the individual described in and
who executed the foregoing instrument, and acknowledged that he/she signed same
as his/her free and voluntary act and deed, for the uses and purposes therein
mentioned.
WITNESS my hand and official seal hereto affixed the day and year first
written above.
_______________________________________
Notary Public in and for the State of
___________________, residing at
________________________
State of _____________________ )
) ss.
County of ____________________ )
I, the undersigned, a notary public in and for the State of
___________, hereby certify that on this ____ day of _________, 1998, personally
appeared before me _______________ known to be the individual described in and
who executed the foregoing instrument, and acknowledged that he/she signed same
as his/her free and voluntary act and deed, for the uses and purposes therein
mentioned.
WITNESS my hand and official seal hereto affixed the day and year first
written above.
_______________________________________
Notary Public in and for the State of
___________________, residing at
________________________
EXHIBIT 10.2
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This eighth amendment to first amended and restated credit agreement
("Amendment") is made and entered into as of August 13, 1998, by and between
U.S. BANK NATIONAL ASSOCIATION, successor by merger to U. S. Bank of Washington,
National Association ("U.S. Bank"), and GARGOYLES, INC., a Washington
corporation ("Borrower").
R E C I T A L S:
A. On or about April 7, 1997, U. S. Bank and Borrower entered into that
certain first amended and restated credit agreement (together with all
amendments, supplements, exhibits, and modifications thereto, the "Credit
Agreement") whereby U. S. Bank agreed to extend certain credit facilities to
Borrower. U. S. Bank and Borrower have entered into seven previous amendments to
the Credit Agreement.
B. The purpose of this Amendment is to set forth the terms and conditions
upon which U. S. Bank will grant Borrower's request to waive and reset certain
financial covenants under the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein, the parties agree as follows:
ARTICLE I. AMENDMENT; DEFINITIONS
1.1 Amendment
The Credit Agreement and each of the other Loan Documents are hereby
amended as set forth herein. Except as specifically provided for herein, all of
the terms and conditions of the Credit Agreement and each of the other Loan
Documents shall remain in full force and effect throughout the terms of the
Loans, as well as any extensions or renewals thereof.
1.2 Definitions
As used herein, capitalized terms shall have the meanings given to them in
the Credit Agreement, except as otherwise defined herein, or as the context
otherwise requires. Section 1.1 of the Credit Agreement is hereby amended to
modify the following definition:
"EBITDA" means Borrower's net income (before taxes) for the relevant
period, subject to the following adjustments: (a) there shall be added to net
income: (i) charges against income consisting of depreciation of real and
personal property, and amortization of goodwill and other intangibles, (ii)
charges against income for non-cash stock compensation, (iii) charges against
income in an amount equal to the non-cash loss resulting from the sale of
Borrower's interest in the kindling Company, and (iv) interest expense; and (b)
there shall be deducted from net income revenues derived from sources other than
continuing operations, such as net gains from sales of capital assets,
restoration to contingency reserves, collection of proceeds of life insurance
policies, write-up of assets, or gains from the sale, acquisition, or retirement
of securities.
ARTICLE II. WAIVER
U. S. Bank hereby agrees to waive all violations of the following financial
covenants through July 30, 1998:
(a) Working Capital covenant set forth in Section 8.16 of the Credit
Agreement;
(b) Debt Service Coverage Ratio set forth in Section 8.17 of the Credit
Agreement;
<PAGE>
(c) Minimum monthly sales covenant set forth in Section 8.19 of the Credit
Agreement; and
(d) Minimum monthly EBITDA covenant set forth in Section 8.20 of the Credit
Agreement.
Borrower shall be in compliance with all financial covenants as of July 31,
1998, and at all times thereafter.
ARTICLE III. MODIFICATION OF FINANCIAL COVENANTS
3.1 Tangible Net Worth
Section 8.15 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
Permit Tangible Net Worth to be less than the following amounts at any
time during the time periods set forth below:
---------------------- --------------------------
Minimum Tangible
Time Periods Net Worth
---------------------- --------------------------
7/31/98 - 8/30/98 ($17,972,000)
---------------------- --------------------------
8/31/98 - 9/29/98 ($17,792,000)
---------------------- --------------------------
9/30/98 - 10/30/98 ($18,294,000)
---------------------- --------------------------
10/31/98 - 11/29/98 ($18,211,000)
---------------------- --------------------------
11/30/98 - 12/30/98 ($18,157,000)
---------------------- --------------------------
12/31/98 - 1/30/99 ($18,903,000)
---------------------- --------------------------
1/31/99 - 2/27/99 ($18,903,000)
---------------------- --------------------------
2/28/99 - 3/30/99 ($18,903,000)
---------------------- --------------------------
3/31/99 and thereafter ($18,903,000)
---------------------- --------------------------
3.2 Working Capital
Section 8.16 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
Permit Working Capital to be less than the following amounts at any
time during the time periods set forth below:
---------------------- -----------------------
Time Periods Minimum Working Capital
---------------------- -----------------------
7/31/98 - 8/30/98 ($3,229,000)
---------------------- -----------------------
8/31/98 - 9/29/98 ($2,928,000)
---------------------- -----------------------
9/30/98 - 10/30/98 ($3,310,000)
---------------------- -----------------------
10/31/98 - 11/29/98 ($3,102,000)
---------------------- -----------------------
11/30/98 - 12/30/98 ($2,927,000)
---------------------- -----------------------
12/31/98 - 1/30/99 ($3,554,000)
---------------------- -----------------------
1/31/99 - 2/27/99 ($3,554,000)
---------------------- -----------------------
2/28/99 - 3/30/99 ($3,554,000)
---------------------- -----------------------
3/31/99 and thereafter ($3,554,000)
---------------------- -----------------------
<PAGE>
3.3 Debt Service Coverage Ratio
Section 8.17 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
Permit the Debt Service Coverage Ratio to be less than the following
amounts as of the last day of each month set forth below for such month.
----------------------- --------------------
Minimum Debt Service
Month Ending Coverage Ratio
----------------------- --------------------
7/31/98 1.67:1.00
----------------------- --------------------
8/31/98 1.93:1.00
----------------------- --------------------
9/30/98 -.51:1.00
----------------------- --------------------
10/31/98 1.64:1.00
----------------------- --------------------
11/30/98 1.52:1.00
----------------------- --------------------
12/31/98 -1.64:1.00
----------------------- --------------------
1/31/99 -1.81:1.00
----------------------- --------------------
2/28/99 1.79:1.00
----------------------- --------------------
3/31/99 and thereafter -1.95:1.00
----------------------- --------------------
3.4 Minimum Monthly Sales
Section 8.19 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
Permit Borrower's net sales (determined in accordance with generally
accepted accounting principles) for any month to be less than the following
amounts:
------------------- ---------------------
Month Ending Minimum Monthly Sales
------------------- ---------------------
July 31, 1998 $3,232,000
------------------- ---------------------
August 31, 1998 $3,462,000
------------------- ---------------------
September 30, 1998 $2,616,000
------------------- ---------------------
October 31, 1998 $3,193,000
------------------- ---------------------
November 30, 1998 $3,059,000
------------------- ---------------------
December 31, 1998 $1,983,000
------------------- ---------------------
January 31, 1999 $3,157,000
------------------- ---------------------
February 28, 1999 $3,903,000
------------------- ---------------------
March 31, 1999 $3,268,000
------------------- ---------------------
<PAGE>
3.5 Minimum Monthly EBITDA
Section 8.20 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
Permit EBITDA for any month to be less than the following amounts:
------------------- --------------
Month Ending Minimum EBITDA
------------------- --------------
July 31, 1998 $ 383,000
------------------- --------------
August 31, 1998 $ 461,000
------------------- --------------
September 30, 1998 ($121,000)
------------------- --------------
October 31, 1998 $ 381,000
------------------- --------------
November 30, 1998 $ 350,000
------------------- --------------
December 31, 1998 ($375,000)
------------------- --------------
January 31, 1999 ($387,000)
------------------- --------------
February 28, 1999 $449,000
------------------- --------------
March 31, 1999 ($476,000)
------------------- --------------
ARTICLE IV. CONDITIONS PRECEDENT
The modifications set forth in this Amendment shall not be effective unless
and until the following conditions have been fulfilled to U.S. Bank's
satisfaction:
(a) U. S. Bank shall have received this Amendment, duly executed and
delivered by Borrower, H.S.C., Inc., Sungold Eyewear, Inc. and Private Eyes
Sunglass Corporation.
(b) After having given effect to any waivers and modifications of
definitions set forth in this Amendment, there shall not exist any Default or
Event of Default.
(c) All representations and warranties of Borrower contained in the Credit
Agreement or otherwise made in writing in connection therewith or herewith shall
be true and correct and in all material respects have the same effect as though
such representations and warranties had been made on and as of the date of this
Amendment.
(d) U. S. Bank shall have received a certified resolution of the board of
directors of Borrower and each of the undersigned guarantors in a form
acceptable to U. S. Bank.
<PAGE>
ARTICLE V. GENERAL PROVISIONS
5.1 Representations and Warranties
Borrower hereby represents and warrants to U. S. Bank that as of the date
of this Amendment and after having given effect to any waivers and modifications
to definitions set forth in this Amendment, there exists no Default or Event of
Default. All representations and warranties of Borrower contained in the Credit
Agreement and the Loan Documents, or otherwise made in writing in connection
therewith, are true and correct as of the date of this Amendment. Borrower
acknowledges and agrees that all of Borrower's Indebtedness to U. S. Bank is
payable without offset, defense, or counterclaim.
5.2 Security
All Loan Documents evidencing U. S. Bank's security interest in the
Collateral shall remain in full force and effect, and shall continue to secure,
without change in priority, the payment and performance of the Loans, as amended
herein, and any other Indebtedness owing from Borrower to U. S. Bank.
5.3 Guaranties
The parties hereto agree that the Guaranties shall remain in full force and
effect and continue to guarantee the repayment of the Loans to U. S. Bank as set
forth in such Guaranties.
5.4 Payment of Expenses
Borrower shall pay on demand all costs and expenses of U. S. Bank incurred
in connection with the preparation, negotiation, execution, and delivery of this
Amendment and the exhibits hereto, including, without limitation, attorneys'
fees incurred by U. S. Bank.
5.5 Survival of Credit Agreement
The terms and conditions of the Credit Agreement and each of the other Loan
Documents shall survive until all of Borrower's obligations under the Credit
Agreement have been satisfied in full.
5.6 Release of Claims
IN CONSIDERATION FOR U. S. BANK'S AGREEMENT TO ENTER INTO THIS AMENDMENT,
BORROWER, H.S.C., INC., SUNGOLD EYEWEAR, INC., AND PRIVATE EYES SUNGLASS
CORPORATION EACH HEREBY RELEASES AND FOREVER DISCHARGES U. S. BANK, ITS
PREDECESSORS AND SUCCESSORS-IN-INTEREST, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS FROM ANY AND ALL CLAIMS,
DEMANDS, DAMAGES, LIABILITIES, CHARGES, ACTIONS, LOSSES, CAUSES OF ACTION,
COSTS, EXPENSES, COMPENSATION, AND SUITS OF ANY KIND, PAST, PRESENT OR FUTURE,
ARISING FROM OR ALLEGED TO ARISE FROM THEIR BUSINESS RELATIONSHIP, INCLUDING THE
RELATIONSHIP PROVIDED FOR IN THE CREDIT AGREEMENT THROUGH THE DATE OF THIS
AMENDMENT, WHETHER KNOWN OR UNKNOWN. THIS RELEASE IS INTENDED TO BE COMPLETE AND
COMPREHENSIVE WITH RESPECT TO ALL SUCH CLAIMS. THIS RELEASE OF CLAIMS HAS BEEN
COMPLETELY READ AND FULLY UNDERSTOOD AND VOLUNTARILY ACCEPTED FOR THE PURPOSE OF
MAKING A FULL AND FINAL COMPROMISE AND SETTLEMENT WITH RESPECT TO ALL CLAIMS,
DISPUTED OR OTHERWISE.
5.7 Counterparts
This Amendment may be executed in one or more counterparts, each of which
shall constitute an original agreement, but all of which together shall
constitute one and the same agreement.
5.8 Statutory Notice
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
<PAGE>
IN WITNESS WHEREOF, U. S. Bank and Borrower have caused this Amendment to
be duly executed by their respective duly authorized signatories as of the date
first above written.
GARGOYLES, INC., a Washington corporation
By /s/ Leo Rosenberger
Title CEO; CFO & Treasurer
U. S. BANK NATIONAL ASSOCIATION
By /s/ David C. Larsen
David C. Larsen, Vice President
Each of the undersigned Guarantors hereby (i) reaffirms its Guaranty and its
Security Agreement, (ii) agrees that its Guaranty guarantees the repayment of
the Loans, as amended herein, (iii) agrees that its respective Security
Agreement and related collateral documents secures the payment and performance
of the Secured Obligations described in such Security Agreement, (iv)
acknowledges that its obligations pursuant to its Guaranty and Security
Agreement are enforceable without defense, offset, or counterclaim, and (v)
agrees to the release of claims set forth in Section 5.6 of this Amendment.
H.S.C., Inc., a Washington corporation
By: /s/ Leo Rosenberger
Title: President, CFO and Treasurer
SUNGOLD EYEWEAR, INC., a Washington
corporation
By: /s/ Leo Rosenberger
Title: CEO, CFO and Treasurer
PRIVATE EYES SUNGLASS CORPORATION, a Washington
corporation
By: /s/ Leo Rosenberger
Title: President, CFO and Treasurer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> For Purposes of This Exhibit, Primary means Basic.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 11,890,156
<ALLOWANCES> (1,200,300)
<INVENTORY> 11,399,436
<CURRENT-ASSETS> 0
<PP&E> 4,018,904
<DEPRECIATION> (1,934,351)
<TOTAL-ASSETS> 49,379,668
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> (20,906,095)
<TOTAL-LIABILITY-AND-EQUITY> 49,379,668
<SALES> 0
<TOTAL-REVENUES> 13,175,741
<CGS> 0
<TOTAL-COSTS> 5,499,125
<OTHER-EXPENSES> 7,198,489
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 880,940
<INCOME-PRETAX> (212,110)
<INCOME-TAX> 0
<INCOME-CONTINUING> (212,110)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (212,110)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
