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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
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Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 for the fiscal year ended January 29, 2000.
Commission File Number 0-22102
CYGNE DESIGNS, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 04-2843286
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1410 BROADWAY, NEW YORK, NEW YORK 10018
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 997-7767
Securities registered pursuant to Section 12(b) of the Act:
None
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(Title of class)
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
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(Title of class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Aggregate market value of the Registrant's Common Stock held by non-affiliates
at April 14, 2000 (based on the closing sale price for such shares as reported
by the OTC Bulletin Board: $2,860,759 Common Stock outstanding as of April 14,
2000: 12,438,038 shares.
Documents incorporated by reference: Portions of the Registrant's definitive
proxy statement for its 2000 annual meeting of stockholders are incorporated by
reference into Part III of this report.
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ITEM 1. BUSINESS
UNLESS OTHERWISE NOTED, ALL REFERENCES TO A YEAR REFER TO THE FISCAL YEAR OF
THE COMPANY COMMENCING IN THAT CALENDAR YEAR AND ENDING ON THE SATURDAY NEAREST
JANUARY 31 OF THE FOLLOWING YEAR. UNLESS THE CONTEXT INDICATES OTHERWISE, THE
TERMS "COMPANY" OR "CYGNE" INCLUDES THE OPERATIONS OF THE COMPANY AND ITS
SUBSIDIARIES AS THEN IN EXISTENCE. THIS REPORT CONTAINS FORWARD-LOOKING
STATEMENTS WHICH INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS
MAY DIFFER SIGNIFICANTLY FROM THE RESULTS DISCUSSED IN THE FORWARD-LOOKING
STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE INCLUDE, BUT ARE NOT
LIMITED TO, THOSE DISCUSSED BELOW.
GENERAL
Cygne Designs, Inc. (the "Company" or "Cygne") is a private label
manufacturer of women's apparel, serving principally The Limited, Inc. The
Company's products include women's woven career and casual apparel. As a private
label manufacturer, the Company produces apparel upon orders from its customers
for sale under the customers' own labels, rather than producing its own
inventory of apparel for sale under the Cygne name. Effective October 31, 1999,
the Company sold substantially all of the assets used in its Israel based
private label Knit clothing manufacturing business ("Knit business"). Since the
sale of the Knit business, the Company has contacted potential customers
concerning the sale of Knit products under the customers' own labels. In
addition, the Company has arrangements in place to produce Knit products in
Guatemala and China. While the Company has no confirmed orders at this time, the
Company expects that such orders will be forthcoming.
The manufacture of private label apparel is characterized by high volume
sales to a small number of customers at competitive prices. Although private
label gross margins are lower than in the brand name apparel industry,
collection and markdown costs are typically commensurably lower, and inventory
turns are generally higher. Inventory risks are also reduced because the
purchasing of fabric and other supplies begins only after purchasing commitments
have been obtained from customers. The Company believes that retailers,
including customers of the Company, are increasingly sourcing private label
products themselves rather than utilizing outside vendors like the Company.
The Company historically has been dependent on one or two key customers. A
significant portion of the Company's sales currently are, and are expected to
continue to be, to various divisions of The Limited, Inc. In 1999, sales to
divisions of The Limited, Inc. were $25.0 million or 45% of total Company sales.
If the sale of the Knit business had been consummated on January 31, 1999, sales
to The Limited, Inc. would have been $22.9 million or 98% of the Company's
proforma sales for 1999. There can be no assurance that The Limited, Inc. will
continue to purchase merchandise from the Company in the future, or that the
Company will be able to attract new customers. The Company believes that The
Limited, Inc., like other retailers, is increasing its sourcing capabilities and
reducing its reliance on outside vendors, including the Company, for these
services.
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The principal executive offices of the Company are located at 1410 Broadway,
New York, New York 10018 and its telephone number is (212) 997-7767.
SIGNIFICANT FINANCIAL AND BUSINESS DEVELOPMENTS
On November 15, 1999, with an effective date of October 31, 1999, Cygne
consummated the sale of its Knit business to Jordache Limited ("Jordache")
pursuant to the Amended and Restated Acquisition Agreement dated as of August 1,
1999, by and among M.T.G.I.-Textiles Manufacturers Group (Israel) Ltd. ("MTGI"),
MBS (Cygne) Company, A.C. Services Inc., all subsidiaries of Cygne, and Jordache
Limited.
The assets transferred to Jordache consisted of substantially all of the
assets used by the Knit business in the manufacture of women's knit clothing,
including machinery, equipment, raw materials, leases, rental agreements,
supplies used in the business, furniture, computer hardware and software, and
certain operating data and the records of MTGI and network equipment, as well as
all of the outstanding stock of Wear & Co. S.r.l. ("Wear"). MTGI was the
Company's wholly-owned Israeli subsidiary and Wear was the Company's
wholly-owned Italian subsidiary. The sale did not include cash, accounts
receivable, and certain other assets of the MTGI business. The liabilities
assigned to, and assumed by, Jordache are all obligations of MTGI under the
contracts and registration included within the assets sold to Jordache.
In consideration of the sale to Jordache of the assets, Jordache paid to
the Company cash equal to (A) the adjusted net book value of the inventory,
fixed assets, advances to vendors, and an investment in a dye house facility
owned by MTGI, less an amount equal to the difference between (1) the sum of (a)
$80,000 and (b) MTGI's income before taxes for the period from August 1, 1999 to
the effective closing date of the sale of the business to Jordache which was
October 31, 1999, and (2) the operating expenses of Wear and Wear & Co.
International, Inc., the U.S. marketing company for MTGI and (B) $100,000 for
the outstanding stock of Wear and assumed liabilities described above, with all
of the items subject to post closing adjustments. In addition, Jordache paid
Cygne a commission of $600,000 on unfilled orders for products included in the
assets and $400,000 for a non-compete agreement for a total of $4,694,000 before
transaction costs. The Company has used the proceeds from the sale, and together
with MTGI retained cash and collections of MTGI accounts receivable, to pay
transaction costs, repay bank borrowings related to MTGI, and to pay other MTGI
liabilities.
Effective August 1, 1999, in connection with the amended and restated
acquisition agreement, Cygne entered into an agreement pursuant to which an
affiliate of Jordache managed the Company's Knit business from August 1, 1999 to
October 31, 1999, the effective closing date of the sale of the Knit business to
Jordache. In addition Jordache also provided financing to the
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Company in connection with certain knit product purchase orders being
manufactured by MTGI during this period.
In connection with the Company's agreement to sell its Knit business, the
Company recorded in 1999 a provision for impairment of Knit business assets in
the amount of $1,625,000, consisting of a loss on assets to be sold, transaction
costs (including loss of certain foreign tax incentives) and reduction of the
purchase price by the adjusted income (as defined) of the Knit business from
August 1, 1999 through the effective closing date of the sale of the business to
Jordache which was October 31, 1999.
The Knit business had revenues of $25.9 million and $32.0 million and gross
profit of $1.1 million and $1.5 million in 1998 and 1999 (through October 31,
1999), respectively. The Company recorded an impairment of Knit business assets
of $2.6 million and $1.6 million in 1998 and 1999, respectively. During 1997,
1998, and 1999, the Knit business accounted for 67%, 60%, and 58%, respectively,
of Cygne's net sales.
The Limited, Inc. (consisting primarily of The Limited Stores and Lerner)
accounted for approximately 65%, 59%, and 45% of Cygne's net sales for 1997,
1998, and 1999, respectively. If the sale of the Knit business had been
consummated on January 31, 1999, sales to The Limited, Inc. for fiscal 1999
would have accounted for 98% of the Company's proforma sales.
Mr. Manuel owns approximately 40.0% of the outstanding Common Stock, and has
a significant influence over, and may in fact control, the outcome of all
matters submitted to a vote of stockholders.
The Company is continuing to review its business operations and expects to
continue to incur additional costs in the future associated with the further
restructuring or downsizing of its operations.
See also "Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations" and Note 2 of Notes to Consolidated Financial
Statements of the Company.
PRODUCTS
The Company currently participates in the women's woven and knit career
and casual sportswear segments of the apparel market. During 1999 the Company's
products in woven and knit career and casual sportswear included jackets, skirts
and pants.
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SOURCING, MANUFACTURING AND SALES
Cygne currently sources and manufactures garments for its customers which
have been designed and developed by the customer.
Private label manufacturing usually operates on a tighter schedule than brand
name manufacturing because goods are not manufactured until purchase orders are
received and the Company's customers strive for quick response time in order to
react to market changes and test results. Delivery cycles vary according to the
type of products manufactured, but frequently occur within a period of six weeks
from fabric delivery to garment delivery. Meeting customer delivery requirements
is both essential and difficult given the global nature of the manufacturing
process.
During 1999 all of the Company's products were manufactured outside the
United States, either by non-affiliated contract manufacturers or at the
Company's sewing facility. The Company's contract manufacturers are located in
several countries in the Far East, Middle East, and Central America. In
addition, the Company owns and operates a manufacturing facility in Guatemala.
During 1999 products representing approximately 2% of the Company's net sales
were produced in the Far East, approximately 58% in the Middle East, and
approximately 40% in Central America. If the sale of the Knit business had been
consummated on January 31, 1999, approximately 47% of the Company's net sales
resulted from products which were manufactured by Cygne in its sewing facility
and approximately 53% resulted from products which were manufactured by
non-affiliated contract manufacturers principally in Central America. Cygne
intends to continue to utilize foreign contract manufacturers for a significant
percentage of its manufacturing requirements. The Company reviews its product
sourcing on an ongoing basis and may alter this allocation to meet changing
conditions and demands. In connection with the sale of the Knit business, Cygne
has agreed not to source products in Israel, Jordan, and the Palestinian
territories prior to May 15, 2000.
Foreign manufacturing is subject to a number of risks, including work
stoppages, transportation delays and interruptions, political instability,
foreign currency fluctuations, economic disruptions, expropriation,
nationalization, the imposition of tariffs and import and export controls,
changes in governmental policies (including U.S. policy toward these countries)
and other factors which could have an adverse effect on the Company's business.
In addition, the Company may be subject to risks associated with the
availability of and time required for the transportation of products from
foreign countries. The occurrence of certain of these factors may delay or
prevent the delivery of goods ordered by customers, and such delay or inability
to meet delivery requirements would have a severe adverse impact on the
Company's results of operations and could have an adverse effect on the
Company's relationships with its customers.
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Furthermore, the occurrence of certain of these factors in the country in which
Cygne owns a manufacturing facility could result in the impairment or loss of
the Company's investment in this country. The loss of any one or more of its
foreign contract manufacturers could have an adverse effect on the Company's
business until alternative supply arrangements were secured.
The Company from time to time experiences difficulties in obtaining timely
delivery of products of acceptable quality which has resulted, in many cases, in
rejections or chargebacks by customers. During 1996 and 1997 the Company
experienced substantial rejections or cancellations by customers with respect to
certain of its products. During 1998 and 1999, the Company continued to
experience some rejections but to a far lesser extent than in years 1996 and
1997. The Company believes that in some cases these difficulties resulted from
not having sufficient access to and control over the manufacturing process for
such products as well as shortened manufacturing times attributable to delays in
obtaining required raw materials due to the liquidity pressures faced by the
Company. There can be no assurance that the Company will not continue to
experience such difficulties in the future. See "Item 7. Management's Discussion
and Analysis of Financial Condition and Results of Operations--General."
Cygne operates its own sewing factory in Guatemala. Operating a manufacturing
facility rather than contracting with independent manufacturers requires the
Company to maintain a higher level of working capital. In addition, reduced
sales have an even greater adverse impact on the Company's results in light of
the fixed costs needed to own and operate its own factory. Because the Company's
manufacturing operation is located outside the U.S., the Company is subject to
many of the same risks as relying on foreign contract manufacturers. See
"Item 2. Properties."
RAW MATERIALS
Cygne usually supplies the raw materials to foreign manufacturers. Otherwise,
the raw materials are purchased directly by the manufacturer in accordance with
the Company's specifications. Raw materials, which are in most instances made
and/or colored specifically to the Company's order, consist principally of
fabric and trim and are readily available from numerous domestic and foreign
sources.
Cygne's foreign raw materials and finished goods purchases are frequently
made on a letter of credit basis, while its domestic purchases are made on an
open order basis. The Company does not have formal long-term arrangements with
any of its suppliers. The Company has experienced little difficulty in
satisfying its raw material requirements and considers its sources of supply
adequate.
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QUALITY ASSURANCE
The Company's quality assurance program is designed to ensure that its
products meet the quality standards of its customers. The Company requires its
overseas agents to employ qualified quality control personnel. Foreign
manufactured fabric is usually inspected both prior to shipment by the Company's
overseas agents as well as upon arrival at their manufacturing destination.
COMPETITION
The private label apparel industry is highly fragmented, and the Company
faces intense competition, including competition from its own customers
(including their affiliates) who have, or may establish, their own internal
product development and sourcing capabilities. Most of the Company's competitors
are larger in size and have greater resources than the Company. The Company
competes primarily on the basis of price, quality and short lead time high
volume manufacturing.
The Company believes that many of its own customers (including their
affiliates), who possess, to varying degrees, the know-how and internal
resources to develop and source directly a portion of their requirements,
constitute its major competition. For example, The Limited, Inc., through its
sourcing subsidiary, Mast Industries, Inc., procures directly a substantial
portion of its product requirements. In addition, apparel divisions of The
Limited, Inc. have formed product development groups as well as added direct
sourcing departments.
The Company believes that its business will depend upon its ability to
provide apparel products which are of good quality and meet its customers'
pricing and delivery requirements, as well as its ability to maintain
relationships with key customers. There can be no assurance that the Company
will be successful in this regard.
IMPORT RESTRICTIONS
The Company sources substantially all its products from Central America with
the balance of the products being sourced in the Far East. The Company's ability
to meet its customers' pricing requirements will depend, in large part, on its
ability to manufacture its products in countries where manufacturing costs are
low. However, because of quota limits, the Company's manufacturing flexibility
is reduced, increasing the risk that the Company will need to manufacture more
of its products in countries where manufacturing costs are higher.
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TEXTILE AGREEMENTS
Prior to January 1, 1995, apparel imports from most countries were subject to
bilateral textile agreements under the Multifiber Arrangement ("MFA") of the
General Agreement on Tariffs and Trade ("GATT") which allowed the imposition of
visa and quota restrictions on certain apparel and textile articles including a
significant portion of those currently sold by the Company. Under the Uruguay
Round Agreements Act, the United States agreed to phase out these bilateral
quotas in three stages over a ten year period. The agreement became effective on
January 1, 1995 for the 124 member countries of the World Trade Organization
("WTO"). Those textile quotas in effect on December 31, 1994 will remain in
effect until they are "phased-out" during the ten-year period. However, these
quotas are subject to a growth formula which uses as a basis the growth rate set
forth in the bilateral textile agreements in effect as of December 31, 1994 and
provides for additional growth of 16%, 25% and 27% of the base growth rate in
the respective phase-out periods. It is believed that the quotas affecting most
of the products imported by the Company are not likely to be phased out until
the end of the third and final stage, I.E., on January 1, 2005. Once
"phased-out," quotas cannot be imposed except in accordance with GATT rules.
These rules generally forbid bilateral quota agreements and other
discriminatory, country-specific restraints. However, some form of global quota
is still possible after completion of the ten year phase-out period. Under
limited circumstances, a new quota (called a "transitional safeguard") may be
imposed during the ten-year phase out period if there is demonstrable evidence
of serious damage, or actual threat of serious damage, to a domestic industry
producing like or competitive products due to a sharp and substantial increase
in imports of a particular product. The United States may also counteract
illegal transshipping practices by imposing new quotas, issuing chargebacks
against existing quotas or imposing embargoes. Such action can be taken against
both the actual country of origin and countries through which such merchandise
was transshipped. While it is not possible to forecast the likelihood of such
occurrences, the imposition of new quotas and/or chargebacks could impact the
Company's ability to source imported merchandise.
Textile and apparel imports from non-members of the WTO, such as the People's
Republic of China, will continue to be subject to bilateral textile agreements
negotiated under the MFA. Under these agreements, the United States may impose
quota restraints on importations of specific categories of merchandise not
presently subject to such quota restraints. The bilateral textile agreement with
The People's Republic of China expires on December 31, 2000. The People's
Republic of China is seeking membership in the WTO. Should its application be
approved, imports from The People's Republic of China may become subject to the
quota phase-outs discussed above or modifications thereof.
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DUTY RATES
The products imported by the Company are subject to "Normal Trade Relations
(NTR)" or column 1 rates of duty which range from zero to 38% AD VALOREM. As a
result of the Uruguay Round Agreements Act, many of these rates will be reduced
over five to fifteen years resulting on average in a 12% reduction from current
rates of duty.
On December 8, 1993, Congress adopted the North American Free Trade Agreement
("NAFTA") under which originating apparel and other products from Mexico and
Canada are immediately exempt from quota restrictions and subject to duty rates
which are being reduced to zero over the next ten years. Similar tariff rate
preferences and quota exemptions are being phased in for certain non-originating
apparel products cut and sewn in Mexico and Canada. Negotiations have begun to
expand NAFTA to possibly include certain Central and South American countries.
The African Growth and Opportunity Act (H.R. 434) is legislation that would
expand trade preferences for Sub-Saharan Africa (SSA) and countries subject to
the Caribbean Basin Economic Recovery Act (CBERA), including Guatemala. Both the
House of Representatives and the U.S. Senate have passed versions of H.R. 434.
The enhanced trade benefits could include duty and quota-free access for various
textile and apparel products imported from eligible countries. However, no
benefits will be available until after the two versions are reconciled and the
resulting legislation is passed by both houses of Congress and signed by the
President.
Imports from the People's Republic of China receive NTR duty rates under a
waiver of the Jackson-Vanik Amendment to the Trade Act of 1974. Under this
statute, certain countries and non-market economies are prohibited from
receiving NTR rates of duties and other trade benefits unless an annual waiver
is issued by the President. The People's Republic of China has received a
Jackson-Vanik Waiver annually since 1979. In May 1999 President Clinton renewed
the waiver. Congress can pass legislation disapproving the one-year extension of
NTR to China, but did not do so in 1999. If NTR for China is discontinued, goods
from China will be subject to "column 2" rates of duty, which range up to 90% AD
VALOREM. However, current duty rates will remain in effect at least until June
2000. The loss of NTR status for the People's Republic of China could adversely
affect the Company's ability to supply products to its customers.
ADDITIONAL RESTRICTIONS
In the ordinary course of its business the Company is, from time to time,
subject to claims by the U.S. Customs Service for additional duties and other
charges. Similarly, from time to time, the Company is entitled to refunds from
the U.S. Customs Service due to the overpayment of duties.
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The U.S. and other countries in which the Company's products are manufactured
or sold may, from time to time, impose new quotas, duties, tariffs, or other
restrictions, including trade sanctions or revocation of "Normal Trade
Relations" status, or adversely adjust presently prevailing quotas or duty
rates, which could adversely affect the Company's operations and its ability to
import products at current or increased levels. The Company cannot predict the
likelihood or frequency of any such events occurring.
The Company monitors duty, tariff and quota-related developments and
continually seeks to minimize its potential exposure to quota-related risks
through, among other measures, geographical diversification of its manufacturing
sources, allocation of production to merchandise categories where more quota is
available, and shifts of production among countries and manufacturers. The
Company also from time to time purchases quantities of temporary quota in
certain countries.
The Company's ability to import its products is subject to the cost and
availability of transportation to the U.S., the demand for production capacity
abroad by other manufacturers, economic or political instability resulting in
the disruption of trade from exporting countries, any significant fluctuation in
the value of the dollar against foreign currencies and restrictions on the
transfer of funds. The Company's operations have not been materially affected by
any of the foregoing factors to date, although there can be no assurance that
these factors will not adversely affect the Company in the future.
BACKLOG
At January 29, 2000 the Company had unfilled confirmed customer orders of
$10.6 million, compared with $9.8 million at January 30, 1999, excluding the
Company's former Knit business. The amount of unfilled orders at a particular
time is affected by a number of factors, including the scheduling of manufacture
and shipping of the product which, in some instances, depends on the customer's
demands. Accordingly, a comparison of unfilled orders from period to period is
not necessarily meaningful and may not be indicative of eventual actual
shipments. The Company's experience has been that the cancellations, rejections
or returns of orders do not materially reduce the amount of sales realized from
its backlog.
EMPLOYEES
At March 31, 2000, the Company had approximately 654 full-time employees,
including approximately 639 employees at its facilities in Guatemala. The
Company considers its relations with its employees to be satisfactory.
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EXECUTIVE OFFICERS OF THE REGISTRANT
The executive officers of the Company are as follows:
Name Age Position with the Company
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Bernard M. Manuel .......... 52 Director, Chairman of the Board
and Chief Executive Officer
Roy E. Green ............... 67 Senior Vice President-Chief Financial
Officer, Treasurer, and Secretary
BERNARD M. MANUEL has served as Chief Executive Officer and a director of
the Company, as well as in several additional executive positions, since he
joined the Company in October 1988. He currently serves as the Chairman of the
Board, Chief Executive Officer and a director. Mr. Manuel is a director of
several private companies in the U.S. and Europe. From 1983 until he joined the
Company, Mr. Manuel was involved, through Amvent, a company he founded, in the
transfer of technology between Europe and the U.S. and related venture capital
and merger and acquisition activities, as well as in the apparel industry. Mr.
Manuel earned a Bachelor's of Science in Mathematics and several graduate
degrees in Mathematics and in Economics from the University of Paris, an M.S. in
Political Science from the "Institut d'Etudes Politiques" in Paris and an M.B.A.
with high honors (Baker Scholar) from the Harvard Business School, where he was
awarded both the Loeb Rhodes Fellowship for excellence in finance and the Melvin
T. Copeland prize for top performance in marketing.
ROY E. GREEN has served as Chief Financial Officer of the Company, as well
as in various additional executive capacities, since October 1987. He currently
serves as Senior Vice President-Chief Financial Officer, Treasurer and Secretary
of the Company. From 1974 until he joined the Company, Mr. Green was employed by
Cluett Peabody & Co., first as the Chief Financial Officer of its Arrow Co.
division until 1979, then as Vice President and Controller until 1985, and
finally as Chief Financial Officer. He has also worked as a certified public
accountant for J. K. Lasser & Co. and Hurdman & Cranstown. Mr. Green received a
Bachelor's degree in Business Administration from Rutgers University. Mr. Green
is a certified public accountant.
The Company's business is dependent upon its ability to attract and retain
qualified employees. The Company is dependent to a significant degree on the
efforts of Bernard M. Manuel, Chairman of the Board and Chief Executive Officer.
Mr. Manuel has an employment agreement with the Company which includes
restrictions on competition by him in certain circumstances after termination of
employment, subject to certain conditions. The loss of the services of Mr.
Manuel could have an adverse effect on the Company's business.
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ITEM 2. PROPERTIES
On March 1, 1999, the Company moved its executive and general offices from
1372 Broadway, New York to substantially smaller space at 680 Fifth Avenue, New
York. During April 2000, the Company moved its executive and general offices to
1410 Broadway, New York. The Company's office now consists of 6,000 square feet
pursuant to a lease which expires on April 30, 2001 with an annual rental
expense of approximately $252,000.
In addition, on March 1, 1999, the Company paid $175,000 to the Landlord of
the 1372 Broadway premises to be released from any contingent rent liability on
the vacated executive and general offices described above as well as the
contingent rent liability on the 60,000 square feet of space previously
subleased at this location.
During 1997, the Company had provided for lease termination expense of $4.0
million for the expenses connected with the move of its executive and general
offices described above as well as an amount to be paid to landlord for release
of its contingent rent liabilities. At January 30, 1999, the Company determined
that the expenses contemplated by this provision would approximate $3.1 million.
Therefore, $0.9 million of this provision is shown as a recoupment in 1998, and
the remaining unused balance of $0.2 million of the original provision was
reversed in 1999.
The Company owns a sewing facility in Guatemala that it believes is well
maintained and in good operating condition.
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in various legal proceedings that are incidental to
the conduct of its business, none of which the Company believes could reasonably
be expected to have a material adverse effect on the Company's financial
condition or results of operations.
TAX AUDITS
The U.S. Internal Revenue Service (the "IRS") is conducting an audit of the
U.S. Federal income tax returns filed by GJM (US) Inc., a wholly-owned
subsidiary, for its taxable years ending December 31, 1990 through October 7,
1994 (the date GJM (US) Inc. was acquired by the Company). To date, the IRS has
informally proposed a Federal income tax deficiency against GJM (US) Inc. of
approximately $16 million (including some penalties but not interest). Depending
on the amount of the deficiency, the amount of interest could be significant.
The outcome of the audit of GJM (US) Inc. cannot be predicted at this time.
Although the Company is disputing the proposed adjustment and believes that it
has established appropriate accounting
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reserves with respect to this matter, an adverse decision in this matter would
have a material adverse impact on the Company and its financial condition,
results of operations, or cash flows.
On October 31, 1999, the date of sale of the Company's Knit business, the
Company's wholly-owned Israeli subsidiary, M.T.G.I.--Textile Manufacturers Group
(Israel) Ltd. ("MTGI"), had its Israeli tax free status terminated retroactive
to January 1, 1994. The Israeli Tax Authority ("Authority") is in the process of
assessing the tax due by MTGI on account of the termination of MTGI's tax free
status for the years ending December 31, 1994 through December 31, 1997. To
date, the Authority has not issued a report detailing the MTGI tax assessment
for this period. Although the Company believes that it has established
appropriate accounting reserves with respect to this matter, an adverse decision
in this matter could have a material adverse impact on the Company and its
financial condition, results of operations, or cash flows.
The Company is subject to other ongoing tax audits in several jurisdictions
in the United States. Although there can be no assurances, the Company believes
any adjustments that may arise as a result of these other audits will not have a
material adverse effect on the Company's financial position, results of
operations, or cash flows.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock was quoted on The Nasdaq National Market under
the symbol "CYDS" until May 29, 1998. On that date, the Company's Common Stock
was delisted from The Nasdaq National Market because the Company did not meet
certain continued listing requirements of the Nasdaq National Market, including
the maintenance of a minimum bid price of at least $1 per share. Cygne Common
Stock is now quoted on the OTC Bulletin Board. There are no assurances that the
OTC Bulletin Board will continue to give quotes on the Cygne Company Stock. The
following table sets forth for the periods indicated the high and low reported
sale prices per share for the Cygne Common Stock as reported by the OTC Bulletin
Board.
High Low
---- -----
FISCAL YEAR ENDED JANUARY 30, 1999
First Quarter ........................................ $0.38 $0.22
Second Quarter ....................................... $0.25 $0.13
Third Quarter ........................................ $0.16 $0.06
Fourth Quarter ....................................... $0.17 $0.08
FISCAL YEAR ENDED JANUARY 29, 2000
First Quarter ........................................ $0.22 $0.08
Second Quarter ....................................... $0.23 $0.16
Third Quarter ........................................ $0.22 $0.13
Fourth Quarter ....................................... $0.38 $0.17
The number of stockholders of record of Common Stock on April 14, 2000 was
approximately 96. The closing sale price of the Company's Common Stock on April
14, 2000 was $0.23 per share.
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<PAGE>
Cygne has never declared or paid a cash dividend on its Common Stock. The
Company anticipates that all future earnings will be retained by the Company for
the development of its business. Accordingly, Cygne does not anticipate paying
cash dividends on the Common Stock in the foreseeable future. The payment of any
future dividends will be at the discretion of the Company's Board of Directors
and will depend upon, among other things, future earnings, operations, capital
requirements, the general financial condition of the Company and general
business conditions.
-15-
<PAGE>
<TABLE>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following tables summarize certain selected financial information which should be read in conjunction with "Item 7.
Management's Discussion and Analysis of Financial Condition and Results of Operations" and the consolidated financial statements
and notes thereto of the Company included elsewhere herein. The selected financial information has been derived from the
consolidated financial statements of the Company, which have been audited by independent auditors. The acquisition of Fenn Wright &
Manson, Inc. ("FWM") in April 1994 and GJM International's intimate apparel and sleepwear operations ("GJM") in October 1994, the
sale of FWM's United Kingdom subsidiary and certain brand name rights in April 1995, the discontinuance of the remaining operations
of FWM in 1995, the sale of GJM in February 1996, the sale of its interest in its joint venture with Ann Taylor and the assets of
its division that were used in sourcing merchandise for Ann Taylor in September 1996, and the sale of the Knit business in November
1999 materially affect the comparability of the financial data reflected below. See "Item 7. Management's Discussion and Analysis
of Financial Condition and Results of Operations"
<CAPTION>
Year (1)
----------------------------------------------------------------------
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
(in thousands except per share amounts)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net sales ............................................... $ 540,063 $ 254,313 $ 43,379 $ 43,013 $ 55,398
Cost of goods sold ...................................... 510,761 226,456 43,063 42,753 50,657
--------- --------- --------- --------- ---------
Gross profit ............................................ 29,302 27,857 316 260 4,741
Selling, general and administrative expenses ............. 72,182 27,251 10,331 4,381 3,874
Provision for impairment of Knit business
assets ............................................... -- -- -- 2,564 1,625
Provision (recoupment) for lease termination
expenses ............................................. -- -- 3,964 (902) (186)
Gain from sale of Ann Taylor Woven
Division and CAT ...................................... -- (29,588) -- -- --
Gain from sale of subsidiary, net ....................... (4,742) -- -- -- --
Loss from sale of GJM business, net ..................... 31,239 -- -- -- --
Reorganization expense .................................. -- 4,813 -- -- --
Write-off of goodwill ................................... 48,949 -- -- -- --
Amortization of intangibles ............................. 3,425 364 364 364 --
--------- --------- --------- --------- ---------
(Loss) income from operations .......................... (121,751) 25,017 (14,343) (6,147) (572)
Other income(2) ......................................... -- (6,864) -- -- --
Settlement of shareholder class
action and related legal expenses..................... -- 2,627 -- -- --
Interest income.......................................... -- (80) (461) (428) (122)
Interest expense......................................... 8,813 3,340 378 337 530
--------- --------- --------- --------- ---------
(Loss) income before income taxes and
minority interests..................................... (130,564) 25,994 (14,260) (6,056) (980)
(Benefit) provision for income taxes .................... (6,216) 7,117 204 269 47
--------- --------- --------- --------- ---------
(Loss) income before minority interests ................. (124,348) 18,877 (14,464) (6,325) (1,027)
Income attributable to minority interests ............... 1,710 961 -- -- --
--------- --------- --------- --------- ---------
Net (loss) income ....................................... $(126,058) $ 17,916 $ (14,464) $ (6,325) $ (1,027)
========= ========= ========= ========= =========
Net (loss) income per share - basic ..................... $ (10.04) $ 1.44 $ (1.16) $ (0.51) $ (0.08)
========= ========= ========= ========= =========
Number of shares used in computation of net
(loss) income per share - basic ................... 12,550 12,438 12,438 12,438 12,438
========= ========= ========= ========= =========
Net (loss) income per share - diluted ................... $ (10.04) $ 1.44 $ (1.16) $ (0.51) $ (0.08)
========= ========= ========= ========= =========
Number of shares used in computation of net
(loss) income per share - diluted ................ 12,550 12,439 12,438 12,438 12,438
========= ========= ========= ========= =========
See Notes on next page
</TABLE>
-16-
<PAGE>
<TABLE>
<CAPTION>
Year (1)
----------------------------------------------------------------------
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
(in thousands)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (as of end of period)
Cash .................................................... $ 5,487 $ 22,246 $ 10,926 $ 3,686 $ 7,020
Accounts receivable ..................................... 35,117 7,239 6,012 8,242 1,853
Assets held for sale .................................... 15,200 -- -- 4,700 --
Inventory ............................................... 29,999 5,109 4,012 2,705 2,421
Goodwill ................................................ 2,790 2,426 2,062 -- --
Total assets ............................................ 117,145 47,142 29,750 23,599 14,768
Long-term debt .......................................... 1,562 -- -- -- --
Stockholders' equity .................................... 9,046 26,959 12,379 6,046 5,143
- ----------------
(1) References to a year are to the fiscal year of the Company commencing in that calendar year and ending on the Saturday nearest
January 31 of the following year. The fiscal year ended February 3, 1996 consisted of 53 weeks. All other years presented
consist of 52 weeks. The Company has never declared or paid cash dividends on its Common Stock.
(2) Principally from the gain on the sale of shares of Ann Taylor common stock.
</TABLE>
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<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
UNLESS OTHERWISE NOTED, ALL REFERENCES TO A YEAR ARE TO THE FISCAL YEAR OF
THE COMPANY COMMENCING IN THAT CALENDAR YEAR AND ENDING ON THE SATURDAY NEAREST
JANUARY 31 OF THE FOLLOWING YEAR.
STATEMENTS IN THIS ANNUAL REPORT ON FORM 10-K CONCERNING THE COMPANY'S
BUSINESS OUTLOOK OR FUTURE ECONOMIC PERFORMANCE; ANTICIPATED RESULTS OF
OPERATIONS, REVENUES, EXPENSES OR OTHER FINANCIAL ITEMS; PRIVATE LABEL AND BRAND
NAME PRODUCTS, AND PLANS AND OBJECTIVES RELATED THERETO; AND STATEMENTS
CONCERNING ASSUMPTIONS MADE OR EXPECTATIONS AS TO ANY FUTURE EVENTS, CONDITIONS,
PERFORMANCE OR OTHER MATTERS, ARE "FORWARD-LOOKING STATEMENTS" AS THAT TERM IS
DEFINED UNDER THE FEDERAL SECURITIES LAWS. FORWARD-LOOKING STATEMENTS ARE
SUBJECT TO RISKS, UNCERTAINTIES AND OTHER FACTORS WHICH COULD CAUSE ACTUAL
RESULTS TO DIFFER MATERIALLY FROM THOSE STATED IN SUCH STATEMENTS. SUCH RISKS,
UNCERTAINTIES AND FACTORS INCLUDE, BUT ARE NOT LIMITED TO, A DECLINE IN DEMAND
FOR MERCHANDISE OFFERED BY THE COMPANY OR CHANGES AND DELAYS IN CUSTOMER
DELIVERY PLANS AND SCHEDULES, SIGNIFICANT REGULATORY CHANGES, INCLUDING
INCREASES IN THE RATE OF IMPORT DUTIES OR ADVERSE CHANGES IN EXPORT QUOTAS,
DEPENDENCE ON A KEY CUSTOMER, RISK OF OPERATIONS AND SUPPLIERS IN FOREIGN
COUNTRIES, COMPETITION, GENERAL ECONOMIC CONDITIONS, AS WELL AS OTHER RISKS
DETAILED IN THE COMPANY'S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION,
INCLUDING THIS ANNUAL REPORT ON FORM 10-K.
GENERAL
On April 6, 1994, Cygne acquired FWM for a purchase price of $44.0 million,
consisting of 2,000,000 unregistered shares of the Company's common stock and
$10,000 in cash. Additional costs related to this acquisition approximated $1.4
million. The excess of the purchase price over the fair value of the net assets
acquired of $47.8 million was recorded as goodwill and was being amortized over
a twenty-five year period. In April 1995, the Company sold FWM's U.K. subsidiary
to FWM N.V. for 600,000 shares of the Company's common stock. During 1995,
management took various actions to reverse a decline in FWM's business. However,
management determined that such actions were not having the desired results and
eliminated all of the operations of FWM. In connection with the elimination of
the FWM operations, the Company wrote-off the remaining $44.5 million of
goodwill in fiscal 1995.
On October 7, 1994, Cygne acquired GJM for a purchase price of $15.2
million, consisting of 650,000 unregistered shares of common stock, $10,000 in
cash and the assumption of approximately $1.9 million of debt owed by GJM
International to The Limited, Inc., as well as non-compete payments aggregating
$3.2 million. Additional costs related to this acquisition approximated $1.7
million. The excess of the purchase price over the fair value of the net assets
-18-
<PAGE>
acquired of approximately $27.7 million was recorded as goodwill and was being
amortized over a twenty-five year period.
In February 1996, the Company sold the GJM Business to Warnaco. In the
transaction, Warnaco paid Cygne $12.5 million in cash and assumed certain
liabilities of the GJM Business. The Company is obligated to indemnify Warnaco
for any claims for taxes arising out of the operation of the GJM Business prior
to the sale of the GJM Business to Warnaco. The Company used all the proceeds of
the sale to repay outstanding senior bank indebtedness.
In February 1995, Cygne acquired Tralee S.A. ("TSA"), a Uruguayan
corporation that sourced products in Brazil for export, primarily to the United
States. The purchase price for TSA was approximately $3.8 million, consisting of
53,038 unregistered shares of common stock and $3.1 million in cash. Additional
costs related to this acquisition approximated $730,000. The excess of the
purchase price over the fair value of the net assets acquired of approximately
$4.5 million was recorded as goodwill and was being amortized over a twenty-five
year period. In January 1996, the Company determined to close TSA. As a result,
the Company recorded a loss of approximately $6.4 million in fiscal 1995,
primarily resulting from the write-off of goodwill associated with the
acquisition. The Company terminated these operations during the third quarter of
1996.
The acquisitions of FWM, GJM and TSA were accounted for under the purchase
method and, accordingly, the operating results of FWM, GJM and TSA were included
in the consolidated operating results since their respective dates of
acquisition.
In June 1992, the Company and certain of its stockholders formed CAT, a
joint venture arrangement with Ann Taylor to source products exclusively for Ann
Taylor. During 1992 and the first quarter of 1993, Ann Taylor owned a 20%
interest in CAT. Effective May 1, 1993, Ann Taylor's interest in CAT increased
to 40%. As a result of such change in ownership, Ann Taylor had, prior to the
consummation of the Ann Taylor Disposition, a 40% interest in the net income of
CAT, which interest was reflected in Cygne's consolidated statements of income
as "income attributable to minority interests."
On September 20, 1996, the Company sold to Ann Taylor Cygne's 60% interest
in CAT and the assets of Cygne's Ann Taylor Woven Division that were used in
sourcing merchandise for Ann Taylor (the "Ann Taylor Disposition"). On the
closing of the transaction, Cygne received 2,348,145 shares of Ann Taylor common
stock, having a value of $36 million (based on the average closing price of the
Ann Taylor common stock during the ten trading days prior to closing), and
approximately $8.9 million (after post-closing adjustments) in cash in respect
of inventory (less related payables and advances and certain other assumed
liabilities), net fixed
-19-
<PAGE>
assets and accounts receivable of the Ann Taylor Woven Division. Ann Taylor also
assumed certain liabilities of the acquired sourcing operations. As a result of
the transaction, the Company realized a pre-tax gain of $29.6 million. Between
October 1996 and January 1997, the Company sold all of the 2,348,145 shares of
Ann Taylor common stock received upon the closing of the transaction at various
prices resulting in aggregate net proceeds of approximately $44.3 million. The
Company realized a pre-tax gain of approximately $6.1 million as a result of the
sale of the shares of Ann Taylor common stock, which is reflected in "Other
income" in the Company's Consolidated Statements of Operations.
In June 1997 the Company terminated by mutual agreement the license
agreements entered into during the summer of 1996 with the Kenzo Group for the
manufacture and distribution in the United States, Canada and Mexico of the
Kenzo Studio and Kenzo Jeans ready-to-wear apparel lines. In connection with the
termination the Kenzo Group returned the $400,000 in pre-paid minimum royalty
payments made on the signing of the license agreements and agreed to pay Cygne
for certain raw materials related to the manufacture of Kenzo products.
On November 15, 1999, with an effective date of October 31, 1999, Cygne
consummated the sale of its Knit business to Jordache Limited ("Jordache")
pursuant to the Amended and Restated Acquisition Agreement dated as of August 1,
1999, by and among M.T.G.I.-Textiles Manufacturers Group (Israel) Ltd. ("MTGI"),
MBS (Cygne) Company, A.C. Services Inc., all subsidiaries of Cygne, and Jordache
Limited.
The assets transferred to Jordache consisted of substantially all of the
assets used by the Knit business in the manufacture of women's knit clothing,
including machinery, equipment, raw materials, leases, rental agreements,
supplies used in the business, furniture, computer hardware and software, and
certain operating data and the records of MTGI and network equipment, as well as
all of the outstanding stock of Wear & Co. S.r.l. ("Wear"). MTGI was the
Company's wholly-owned Israeli subsidiary and Wear was the Company's
wholly-owned Italian subsidiary. The sale did not include cash, accounts
receivable, and certain other assets of the MTGI business. The liabilities
assigned to, and assumed by, Jordache are all obligations of MTGI under the
contracts and registration included within the assets sold to Jordache.
In consideration of the sale to Jordache of the assets, Jordache paid
to the Company cash equal to (A) the adjusted net book value of the inventory,
fixed assets, advances to vendors, and an investment in a dye house facility
owned by MTGI, less an amount equal to the difference between (1) the sum of (a)
$80,000 and (b) MTGI's income before taxes for the period from August 1, 1999 to
the effective closing date of the sale of the business to Jordache which was
October 31, 1999, and (2) the operating expenses of Wear and Wear & Co.
International, Inc., the U.S. Marketing company for MTGI and (B) $100,000 for
the outstanding stock of Wear and
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<PAGE>
assumed liabilities described above, with all of the items subject to post
closing adjustment. In addition, Jordache paid Cygne a commission of $600,000 on
unfilled orders for products included in the assets and $400,000 for a
non-compete agreement for a total of $4,694,000. The Company has used the
proceeds from the sale, and together with MTGI retained cash and collections of
MTGI accounts receivable, to pay transaction costs, repay bank borrowings
related to MTGI, and to pay other MTGI liabilities.
Effective August 1, 1999, in connection with the amended and restated
acquisition agreement, Cygne entered into an agreement pursuant to which an
affiliate of Jordache managed the Company's Knit business from August 1, 1999 to
October 31, 1999 the effective closing date of the sale of the Knit business to
Jordache. In addition Jordache also provided financing to the Company in
connection with certain knit product purchase orders being manufactured by MTGI
during this period.
In connection with the Company's agreement to sell its Knit business, the
Company recorded in 1999 provision for impairment of Knit business assets in the
amount of $1,625,000, consisting of a loss on assets to be sold, transaction
costs (including taxes) and reduction of the purchase price by the adjusted
income (as defined) of the Knit business from August 1, 1999 through the
effective closing date of the sale of the business to Jordache which was October
31, 1999.
If the sale of the Knit business had been consummated on January 31, 1999
(the first day of fiscal 1999), the Company would have had proforma net sales
for 1999 of $23.4 million. Proforma gross profit for 1999 would have been $3.3
million. Proforma income from operations for 1999 would have been $258,000. The
proforma net income would have been $254,000. The proforma net income per share
would have been $0.02.
During 1997, 1998, and 1999 the Knit Business accounted for 67%, 60%,
and 58%, respectively, of Cygne's net sales.
The Limited, Inc. (consisting primarily of The Limited Stores and Lerner)
accounted for 65%, 59%, and 45% of Cygne's net sales for 1997, 1998, and 1999,
respectively. If the sale of the Knit business had been consummated on January
31, 1999, sales to The Limited, Inc. for 1999 would have accounted for 98% of
the proforma Company sales.
Although Cygne has a long established relationship with The Limited, Inc.,
its key customer, Cygne does not have long-term contracts with any of its
customers, including The Limited, Inc. The Company has been dependent on its key
customers and its future success will be dependent upon its ability to attract
new customers and to maintain its relationship with The Limited, Inc.
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<PAGE>
There can be no assurance that The Limited, Inc. will continue to purchase
merchandise from the Company at the same rate or at all in the future, or that
the Company will be able to attract new customers. In addition, as a result of
the Company's dependence on The Limited, Inc. The Limited, Inc. has the ability
to exert significant control over the Company's business decisions, including
prices. Furthermore, The Limited, Inc. procures directly a substantial portion
of its apparel product requirements through its sourcing subsidiary, and such
subsidiary will continue to be a major competitor of the Company with respect to
the Company's business with The Limited, Inc. In addition, the apparel divisions
of The Limited, Inc. have formed direct sourcing departments. In December 1997 a
limited partnership controlled by The Limited, Inc. sold its 734,319 shares of
Cygne stock to Mr. Manuel, the Company's Chairman and Chief Executive Officer.
Upon the closing of the transaction, The Limited, Inc. did not own any shares of
Cygne stock.
The Company is continuing to review its business operations and expects to
incur additional costs in the future associated with the further restructuring
or downsizing of its operations.
The apparel industry is highly competitive and historically has been
subject to substantial cyclical variation, with purchases of apparel and related
goods tending to decline during recessionary periods when disposable income is
low. This could have a material adverse effect on the Company's business.
Retailers, including customers of the Company, are increasingly sourcing private
label products themselves rather than utilizing outside vendors like the
Company.
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<PAGE>
RESULTS OF OPERATIONS
The following table is derived from the Company's consolidated statements of
operations and expresses for the periods indicated certain income data as a
percentage of net sales.
Percentage of Net Sales
-------------------------------
Year
-------------------------------
1999 1998 1997
------ ------ ------
Net sales .................................. 100.0% 100.0% 100.0%
===== ===== =====
Gross profit ............................... 8.6 0.6 0.7
Selling, general and administrative
expenses ................................. 7.0 10.2 23.8
Provision for impairment of Knit
business assets .......................... 2.9 6.0 --
(Recoupment) provision for lease
termination expense ...................... (0.3) (2.1) 9.1
Amortization of intangibles ................ -- 0.8 0.8
----- ----- -----
Loss from operations ....................... (1.0) (14.3) (33.0)
Interest expense (income), net ............. 0.8 (0.2) (0.2)
Provision for income taxes ................. 0.1 0.6 0.5
----- ----- -----
Net (loss) ................................. (1.9%) (14.7%) (33.3%)
===== ===== =====
1999 COMPARED TO 1998
The Company sold its Knit business effective October 31, 1999. Accordingly,
the Company's results of operations for 1999 only include the results of the
Knit business through October 31, 1999, while the 1998 results of operations
include the results of the Knit business for the entire year. As a result, a
comparison of 1998 and 1999 results may not be meaningful to the extent effected
by the sale of the Knit business.
NET SALES
Net sales for 1999 were $55.4 million, an increase of $12.4 million or 29%
from $43.0 million for 1998. The increase in net sales for 1999 compared to 1998
was primarily attributable to an
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<PAGE>
increase in sales of the Woven division of $6.3 million and the Knit division of
$6.1 million.
During 1999 and 1998, the Knit business accounted for 58% and 60%,
respectively, of Cygne's net sales.
Woven division sales for 1999 were $23.4 million, an increase of $6.3
million or 37% from $17.1 million for 1998. The increase in Woven division sales
to The Limited, Inc. for 1999 compared to the comparable period in 1998 of $6.9
million was partially offset by a decrease in sales to other customers. The
Limited, Inc. accounted for 98% of the Woven division sales for 1999 compared to
94% in 1998.
Knit division sales for 1999 were $32.0 million, an increase of $6.1
million or 24% from $25.9 million in 1998. The increase in Knit division sales
for 1999 compared to 1998 was primarily attributable to an increase in sales to
its new customer, Wal-Mart, partially offset by the sale of the Knit division as
of October 31, 1999, which had sales of $6.4 million in the fourth quarter of
1998.
GROSS PROFIT
The gross profit for 1999 was $4.7 million, an increase of $4.4 million
from the gross profit of $0.3 million for 1998.
The Woven division had a gross profit for 1999 of $3.3 million compared to
a gross loss of $0.8 million in 1998. The gross margin for 1999 was 14%. The
gross profit increase for 1999 compared to 1998 was primarily due to its Central
American operation earning a profit in 1999 compared to a significant loss in
1998.
The Knit division had a gross profit for 1999 of $1.5 million, an increase
of $0.4 million or 36% increase from the gross profit of $1.1 million in 1998.
The increase in the gross profit for 1999 was primarily attributable to a gross
profit increase on higher sales than the prior comparable period, plus by the
sale of the Knit division as of October 31, 1999 which had a gross loss of $0.7
million in the fourth quarter of 1998.
SELLING, GENERAL, AND ADMINISTRATIVE EXPENSES
Selling, general, and administrative expenses for 1999 were $3.9 million, a
decrease of $0.5 million or 12% from $4.4 million in 1998. The decrease in
expenses for 1999 compared to 1998 was attributed to a reduction of $0.9 million
in corporate expenses, offset by an increase in the Woven division expenses of
$0.5 million and Knit division expenses of $0.2 million, primarily as a result
of the sale of the Knit division effective prior to the commencement of the
fourth quarter of 1999.
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<PAGE>
The Woven division expenses for 1999 were $2.0 million, an increase of $0.2
million, or 33% from $1.5 million in 1998. The increase for 1999 compared to
1998 was attributable to increased staff to support the Woven division sales
increase of $6.2 million from 1998.
The Knit division expenses for 1999 were $0.7 million, a decrease of $0.2
million compared to 1998. The decrease was primarily attributable to an increase
in travel to service its new customer offset by the sale of the Knit division as
of October 31, 1999, which had expenses of $0.3 million in the fourth quarter of
1998.
The corporate expenses for 1999 were $1.2 million, a decrease of $0.9
million, or 45% from $2.0 million in 1998. The decrease for 1999 was primarily
attributable to the termination of most of the corporate staff in 1998.
INTEREST
Net interest expense for 1999 was $408,000 as compared to net interest
income of $91,000 in 1998. The increase in interest expense for 1999 compared to
1998 was primarily attributable to increased borrowings used to fund the Knit
division's operation.
PROVISION FOR IMPAIRMENT OF KNIT BUSINESS ASSETS
In connection with the amended and restated acquisition agreement to sell
its Knit business, the Company recorded in 1999 a provision for impairment of
Knit business assets in the amount of $1.6 million, which consists of a loss on
assets to be sold, transaction costs (including loss of certain foreign tax
incentives), and a reduction of the purchase price by the adjusted net income
(as defined) of the Knit business from August 1, 1999 through October 31, 1999.
In March 1999, the Company agreed to sell the Knit business. In connection
with the sale, during 1998, the Company established a provision of $2.6 million
for the impairment of the Knit business assets. The provision included the
unamortized goodwill of the Knit business ($1.7 million), loss on assets to be
sold and estimated transaction costs.
(RECOUPMENT) FOR LEASE TERMINATION EXPENSE
In 1998, the Company recouped $902,000 of its 1997 provision for lease
termination expense. In 1999, the Company recouped the remaining unused balance
of $186,000.
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<PAGE>
PROVISION FOR INCOME TAXES
The provision for income taxes for 1999 represents provision for minimum
state income taxes and taxes payable to foreign countries for income earned in
foreign countries. As of January 29, 2000, based upon tax returns filed and to
be filed for the fiscal year ended January 29, 2000, the Company reported a net
operating loss carryforward for U.S. Federal income tax purposes of
approximately $114,000,000. If unused, these loss carryforwards will expire in
the Company's taxable years ending 2011 through 2015. Under Section 382 of the
U.S. Internal Revenue Code, if there is a more than 50% ownership change (as
defined therein) with respect to the Company's stock, the Company's loss
carryforwards for U.S. Federal and New York State and City tax purposes would be
virtually eliminated.
As of January 29, 2000, based upon tax returns filed and to be filed for
the fiscal year ended January 29, 2000, the Company reported net operating loss
carryforwards for New York State and City tax purposes (on a separate company
basis) of approximately $74,800,000. If unused, these loss carryforwards will
expire in the Company's taxable years ending in 2011 through 2014.
1998 COMPARED TO 1997
NET SALES
Net sales for 1998 were $43.0 million, a decrease of $0.4 million or 0.8%
from $43.4 million in 1997. The decrease in net sales for 1998 compared to 1997
was primarily attributable to decreases in sales to divisions of The Limited,
Inc. of $2.6 million, which was offset by sales to new customers.
Woven division sales for 1998 were $17.1 million, an increase of $2.8
million or 19.8% from $14.3 million in 1997. The increase in sales to The
Limited, Inc. of $6.2 million was offset by a decrease in sales to other
customers.
Knit division sales for 1998 were $25.9 million, a decrease of $3.0 million
or 10.4% from $28.9 million in 1997. The decrease in sales to The Limited, Inc.
of $8.8 million was offset by an increase in sales to other customers.
Kenzo, a discontinued division, had $0.2 million in sales in 1997.
GROSS PROFIT
Gross profit was $0.3 million in both 1998 and 1997.
-26-
<PAGE>
The woven division had gross loss of $0.8 million, a $1.6 million decrease
from the 1997 gross profit of $0.8 million. The increase in the 1998 loss over
1997 was mainly attributable to the loss of $2.8 million at the Company's
Central American operation. The loss at the Central American operation was
caused by under-absorption of manufacturing overhead during the first nine
months of 1998 and severance costs for work force reduction.
The Knit division had a gross profit of $1.1 million, an increase of $0.4
million from the $0.7 million in 1997. The gross margin for 1998 was 4.1%
compared to 2.3% in 1997.
The discontinued division in 1997 had a gross loss of $1.2 million.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses for 1998 were $4.4 million, a
decrease of $5.9 million or 57.6% from the $10.3 million in 1997.
The Knit division SG&A expenses decreased $0.4 million from 1997 as a
result of expense reduction programs initiated during 1998.
The $2.6 million decrease in Corporate SG&A expenses from 1997 resulted
from less severance expense in 1998 than 1997, when a significant portion of the
downsizing of the Company occurred.
The Kenzo division in 1997 had SG&A expenses of $2.9 million.
PROVISION FOR IMPAIRMENT OF KNIT BUSINESS ASSETS
In March 1999 the Company agreed to sell the Knit business. In connection
with the sale, during 1998 the Company established a provision of $2.6 million
for the impairment in the Knit business assets. This provision includes the
unamortized goodwill of the Knit business ($1.7 million), loss on assets to be
sold, and estimated transaction costs. The provision excludes the Knit group
1999 results of operations.
(RECOUPMENT) FOR LEASE TERMINATION EXPENSES
In 1997, the Company provided for lease termination expenses of $3,964,000
as a result of the Company's decision to relocate from its existing New York
Office and to seek substantially smaller new York office space. On March 1,
1999, the Company completed its relocation from its existing
-27-
<PAGE>
New York office and the Landlord released the Company from any contingent rent
liability on its New York space and on its leases assumed by Ann Taylor in 1996.
The Company determined that the expenses contemplated by this provision would
approximate $3,063,000. Therefore, $902,000 of this provision is shown as a
recoupment in 1998, and the remaining unused balance of the $186,000 of the
original provision was reversed in 1999.
INTEREST
Net interest income for 1998 was $91,000 compared to net interest income of
$83,000 in 1997. Net interest income for 1998 of $428,000 includes $155,000 in
interest income from a federal tax refund. Excluding the interest received on
the tax refund, the decreases in net interest income for 1998 compared to 1997
was primarily attributable to a reduction in the Company's cash balance which
was used to fund the Company's losses.
PROVISION FOR INCOME TAXES
The provision for income taxes in 1998 primarily represents provision for
minimum state income taxes and taxes payable to foreign countries for income
earned in the foreign countries. At January 30, 1999, the Company had net
operating loss carryforwards of approximately $108 million, which may be used to
offset future United States taxable income.
LIQUIDITY AND CAPITAL RESOURCES
Prior to 1997, the Company had historically financed its operations
primarily through financing from lending institutions, financing from customers
and third party trade credit facilities, cash from operations and the issuance
of debt and equity securities.
The Company received proceeds of approximately $4.7 million before
transaction costs, subject to post closing adjustments, from the consummation of
the sale of the Knit business. In addition, the retained cash and accounts
receivable and certain other assets of the Knit business aggregated
approximately $4.5 million at October 30, 1999. The Company has used the cash
proceeds from the sale, the collection of MTGI's accounts receivable to pay the
transaction costs (including loss of certain foreign tax incentives) related to
the sale, repay bank borrowings related to MTGI, and to pay other MTGI
liabilities. The excess cash received from the transaction will be used for
general working capital purposes.
Since February 1, 1997, the Company has not had a domestic credit facility.
Since the expiration of its prior bank domestic credit facility, Cygne has
obtained letters of credit issued from domestic banks secured by a cash deposit
from the Company. At January 29, 2000 the Company had
-28-
<PAGE>
restricted cash at banks of $0.7 million as collateral for letters of credit.
The Company had a credit facility with an Israeli bank to finance the Knit
operations. On November 4, 1999, the outstanding balance under this facility was
repaid and the facility was terminated.
Net cash provided by operating activities was $3.5 million in 1999 compared
to net cash used in operating activities of $8.4 million in 1998. The increase
in net cash provided by operating activities was primarily the result of $5.3
million decrease in net loss, $7.2 million decrease in working capital
requirements, offset by a decrease of $0.6 million non-cash provisions.
The Company's financial performance for 2000 will depend upon a variety of
factors, including the amount of sales to The Limited, Inc. If the Company has
significant operating losses or adverse decisions in either its federal tax
audit of GJM (US) Inc. or the Israeli tax assessment of MTGI, which required the
Company to pay significant amounts of tax, the Company will face severe
liquidity pressures in 2000 which would adversely affect the Company's financial
condition and results of operations. The Company is continuing to review its
business operations and could incur additional costs in the future associated
with the restructuring or downsizing of its operations.
INFLATION
The Company does not believe that the relatively moderate rates of
inflation which have been experienced in the U.S., where it competes, have had a
significant effect on its net sales or profitability.
FOREIGN CURRENCY EXCHANGE
The Company negotiates substantially all its purchase orders with its
foreign manufacturers in U.S. dollars. Thus, notwithstanding any fluctuation in
foreign currencies, the Company's cost for any purchase order is not subject to
change after the time the order is placed. However, the weakening of the U.S.
dollar against local currencies could lead certain manufacturers to increase
their U.S. dollar prices for products. The Company believes it would be able to
compensate for any such price increase.
IMPACT OF THE YEAR 2000
The Year 2000 problem (the "Year 2000 Problem" or "Year 2000") was to have
resulted from competer programs and devices that did not differentiate between
the year 1900 and the year 2000 because they were written using two digits
rather than four to define the applicable year; accordingly,
-29-
<PAGE>
computer systems that have time-sensitive calculations potentially would not
properly recognize the year 2000. This could have resulted in system failures or
miscalculations causing disruptions of the Company's operation, including,
without limitation, manufacturing, distribution, and other business activities.
The Year 2000 Problem potentially affected substantially all of Cygne's business
activities. The Company believes that as a result of its Year 2000 remediation
and planning programs, the Year 2000 Problem has not, as of April 20, 2000, had
a material adverse effect on the operations or financial results of the Company.
As of January 29, 2000, the Company estimates that it had incurred approximately
$20,000 in its Year 2000 efforts, including, without limitation, outside
consulting fees and computer systems upgrades but excluding internal staff
costs, all of which has been expensed. It is possible that Cygne will experience
Year 2000 related problems in the future, particularly with its non-business
critical systems, which may result in failures of miscalculations resulting in
inacuracies in computer output or disruptions of operations. However, Cygne
believes that the Year 2000 Problem will not pose significant operational
problems for its business critical computer systems and equipment. The financial
impact of future remediation actuvities that may becaome necessary, if any,
cannot be known precisely at this time, but it is not expected to be material.
QUARTERLY OPERATING RESULTS
The following table sets forth selected unaudited quarterly financial data
for the most recent eight quarters. The quarterly financial data reflects, in
the opinion of the Company, all adjustments (which include only normal recurring
adjustments) necessary for a fair presentation of the results of operations for
such periods. Results of any one or more quarters are not necessarily indicative
of annual results or continuing trends.
-30-
<PAGE>
<TABLE>
<CAPTION>
($ In thousands except per share amounts)
------------------------------------------------------------------------------------
1999 1998
------------------------------------------ ---------------------------------------
Qtr. 1 Qtr. 2 Qtr. 3 Qtr. 4(1) Qtr. 1 Qtr. 2 Qtr. 3 Qtr. 4(2)
------- ------- ------- ------ ------ ------ ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales ......................... $13,561 $13,166 $22,799 $5,872 $6,245 $8,509 $13,158 $15,101
Gross profit (loss) ............... 1,163 1,531 1,220 827 (238) 399 (312) 411
Provision for impairment of
Knit business assets .............. -- 886 530 209 -- -- -- 2,564
Operating profit (loss) ........... 243 (459) (396) 40 (1,345) (1,048) (1,511) (2,243)
Net income (loss) ................. 79 (665) (470) 29 (1,328) (1,127) (1,484) (2,386)
Net income (loss) per share--
basic and diluted ................. $ 0.01 $ (0.05) $ (0.04) $ 0.00 $(0.11) $(0.09) $(0.12) $(0.19)
Weighted average number
of common shares
outstanding ....................... 12,438 12,438 12,438 12,438 12,438 12,438 12,438 12,438
</TABLE>
- ----------
(1) Includes recoupment of lease termination expense provisions of $186,000.
(2) Includes recoupment of lease termination expense provisions of $902,000.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements are included herein commencing on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
-31-
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Directors
The section entitled "Proposal No. 2 -- Election of Directors" in the
Company's Proxy Statement for the Annual Meeting of Stockholders is
incorporated herein by reference.
Executive Officers
See PART I -- Executive Officers of the Registrant.
ITEM 11. EXECUTIVE COMPENSATION
The section entitled "Executive Compensation" in the Company's Proxy
Statement for the Annual Meeting of Stockholders is incorporated herein by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The section entitled "Beneficial Ownership of Common Stock" in the
Company's Proxy Statement for the Annual Meeting of Stockholders is incorporated
herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The sections entitled "Executive Compensation - Compensation Committee
Interlocks and Insider Participation" and "Certain Transactions" in the
Company's Proxy Statement for the Annual Meeting of Stockholders is incorporated
herein by reference.
-32-
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
AND REPORTS ON FORM 8-K
(a) Financial Statements
(1) and (2) See "Index to Consolidated Financial Statements and Financial
Statement Schedule" on page F-1.
(3) Exhibits
Certain exhibits presented below contain information that has been
granted subject to a request for confidential treatment Such
information has been omitted from the exhibit. Exhibit Nos. 10.2,
10.3, 10.4, 10.5, 10.6, 10.8, 10.9, 10.23, 10.28 and 10.30 are
management contracts, compensatory plans or arrangements.
Exhibit No. Description
----------- ---------------
2.1 Amended and Restated Acquisition Agreement, dated as of August
1, 1999 by and among M.T.G.I. - Textile Manufacturers Group
(Israel), Limited, MBS Company, AC Services Inc. and Jordache
Limited. *(10)
3.1 Restated Certificate of Incorporation, as amended by Certificate of
Amendment filed August 5, 1994 with the Secretary of State of the
State of Delaware.*(1)
3.2 By-laws.*(2)
4 Specimen Stock Certificate.*(2)
-33-
<PAGE>
10.1 Agreement, dated as of April 30, 1993, among the Company,
Bernard Manuel, Irving Benson, CIL, Belton Limited and certain
other parties.*(2)
10.2 Amended and Restated Employment Agreement, dated as of January
1, 1995, between the Company and Bernard M. Manuel.*(7)
10.3 Consulting and Severance Agreement dated as of November 27, 1996
between the Company and Irving Benson.*(8)
10.4 Employment Agreement, dated as of May 1, 1993, between the
Company and Roy Green.*(2)
10.5 Employment Agreement, dated as of May 1, 1993, between the
Company and Gary Smith.*(2)
10.6 Consulting Agreement, dated as of September 20, 1996, between
AnnTaylor Stores Corporation, AnnTaylor, Inc., Cygne Designs,
Inc. and Mr. Bernard M. Manuel.*(8)
10.7 Consulting Agreement, dated as of September 20, 1996, between
AnnTaylor Stores Corporation, AnnTaylor, Inc., Cygne Designs,
Inc. and Mr. Irving Benson.*(8)
10.8 Employment Agreement, dated April 4, 1994, between the
Company and Paul D. Baiocchi.*(3)
10.9 Employment Agreement, dated as of April 7, 1994, among the
Company, Fenn, Wright and Manson, Incorporated, and Trevor J.
Wright.*(3)
-34-
<PAGE>
10.10 Purchase Agreement, dated as of October 7, 1994, by and among
Cygne Designs, Inc., G.J.M. Manufacturing Limited, G.J.M.
Purchasing Limited, G.J.M. Sales Limited, G.J.M. (Sales), Inc. and
G.J.M. International Limited.*(6)
10.11 Registration Rights Agreement, dated as of April 6, 1994,
between the Company and Fenn Wright and Manson (Antilles)
N.V.*(3)
10.12 Agreement, dated as of March 24, 1995, by and among Cygne
Designs, Inc., Fenn Wright and Manson (Antilles) N.V., Fenn,
Wright and Manson Incorporated and Colin Fenn.*(7)
10.13 Financing Contract in Value with Personal Mortgage Guarantees,
dated January 21, 1994.*(3)
10.14 Agreement, dated as of September 30, 1993, among Jonathan Kafri,
Simona Kafri, Cygne Designs F.E. Limited, T. Wear Company S.r.l.
and Cygne Designs, Inc.*(4)
10.15 Agreement, dated as of September 30, 1993, among Lancaster
Enterprises Limited, Jonathan Kafri, Simona Kafri, Cygne Designs
F.E. Limited, M.T.G.I. - Textile Manufacturers Group (Israel)
Limited, Cygne TW Inc. and Cygne Designs, Inc.*(4)
10.16 Stock and Asset Purchase Agreement, dated as of June 7, 1996, as
amended as of August 27, 1996, by and between Cygne Designs,
Inc., Cygne Group (F.E.) Limited, AnnTaylor Stores Corporation
and AnnTaylor, Inc.*(9)
10.17 License Agreement, dated as of July 26, 1996, by and between
Cygne Designs, Inc. and Kenzo S.A. pertaining to the KENZO
STUDIO license.*(9)
-35-
<PAGE>
10.18 License Agreement, dated as of July 26, 1996, by and between
Cygne Designs, Inc. and Kenzo S.A. pertaining to the KENZO
JEANS license.*(9)
10.19 Form of Indemnification Agreement.*(2)
10.20 Assumption Agreement, dated October 7, 1994, by and between
G.J.M. International Limited and Cygne Designs, Inc.*(5)
10.21 Registration Rights Agreement, dated as of October 7, 1994, by and
between Cygne Designs, Inc. and G.J.M. International Limited.*(5)
10.22 Amendment No. 1 to the Registration Rights Agreement, dated as of
October 6, 1994, amending the registration rights agreement, dated as
of July 29, 1993 between Cygne Designs, Inc. and Limited Direct
Associates, L.P.*(5)
10.23 Employment Agreement, dated as of February 3, 1997, between the
Company and Jonathan Kafri.
10.24 Agreement of Lease, dated August 7, 1991, between the Company
and Nineteen New York Properties Limited Partnership, as amended
by the First Amendment of Lease, dated as of January 1, 1993.*(2)
10.25 Second Amendment of Lease, dated May 31, 1993, between
Nineteen New York Properties Limited Partnership and the
Company.*(2)
10.26 Third Amendment of Lease, dated as of December 1, 1993, between
Nineteen New York Properties Limited Partnership and the
Company.*(3)
-36-
<PAGE>
10.27 Amended and Restated Credit Agreement, dated as of September 20,
1996, by and between Cygne Designs, Inc. and The Hongkong and
Shanghai Banking Corporation Limited.*(8)
10.28 1993 Stock Option Plan, as amended, through June 28, 1994.*(1)
10.29 Form of Stock Option Agreement.*(2)
10.30 Stock Option Plan for Non-Employee Directors.*(2)
10.31 Memorandum of Understanding, dated as of June 1, 1993, among the
Company, Cygne Knits Limited, T. Wear Company S.r.l. and certain
other parties.*(2)
10.32 Management Agreement, dated August 1, 1999, by and between
M.T.G.I.-Textile Manufacturers Group (Israel) Ltd., MBS (Cygne)
Company, A.C. Services, Inc., and Jordache Limited
10.33 Letter Agreement, dated as of August 1, 1999, between
Sportswear International (USA), Inc. And Jordache Limited, as
amended *(10)
10.34 Lease between the Company and L.H. Charney Associates, L.P.
21 Subsidiaries of the Company.
23 Consent of Ernst & Young LLP.
27 Financial Data Schedule (for SEC use only).
- ----------
* Previously filed with the Commission as Exhibits to, and incorporated
herein by reference from, the following documents:
(1) Company's Quarterly Report on Form 10-Q for the quarter ended July 30,
1994.
-37-
<PAGE>
(2) Company's Registration Statement on Form S-1 (Registration No. 33-64358).
(3) Company's Annual Report on Form 10-K for the fiscal year ended January 29,
1994.
(4) Company's Quarterly Report on Form 10-Q for the quarter ended October 30,
1993.
(5) Company's Quarterly Report on Form 10-Q for the quarter ended October 29,
1994.
(6) Company's Current Report on Form 8-K dated October 7, 1994.
(7) Company's Annual Report on Form 10-K for the fiscal year ended January 28,
1995.
(8) Company's Quarterly Report on Form 10-Q for the quarter ended November 2,
1996.
(9) Company's Quarterly Report on Form 10-Q for the quarter ended August 3,
1996.
(10) Company's Quarterly Report on Form 10Q for the quarter ended July 31, 1999.
Exhibits have been included in copies of this Report filed with the
Securities and Exchange Commission. Stockholders of the Company will be
provided with copies of these exhibits upon written request to the Company.
(b) Reports on Form 8-K
November 15, 1999 report announcing that Cygne Designs, Inc. had
consummated the sale of its Knit business to Jordache Limited.
(c) Exhibits
See (a) (3) above.
(d) Financial Statement Schedule
See "Index to Consolidated Financial Statements and Supplemental
Schedule" appearing on F-1. Schedules not included herein are omitted
because they are not applicable or the required information appears in
the Consolidated Financial Statement or notes thereto.
-38-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
CYGNE DESIGNS, INC.
(Registrant)
By: /s/ BERNARD M. MANUEL
----------------------------------
Bernard M. Manuel
(Chairman and Chief
Executive Officer)
Date: April 26, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the Registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ BERNARD M. MANUEL Chairman of the Board of Directors, April 26, 2000
- ---------------------- Chief Executive Officer and Director
Bernard M. Manuel (principal executive officer)
/s/ ROY E. GREEN Senior Vice President, Chief April 26, 2000
- ---------------------- Financial Officer, and Treasurer
Roy E. Green (principal financial and accounting
officer) and Secretary
/s/ JAMES G. GRONINGER Director April 26, 2000
- ----------------------
James G. Groninger
-39-
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
- ----
Consolidated Financial Statements
Report of Independent Auditors ........................................ F-2
Consolidated Balance Sheets as of January 29, 2000
and January 30, 1999 ................................................. F-3
Consolidated Statements of Operations for Each of the Three
Years in the Period Ended January 29, 2000 .......................... F-4
Consolidated Statements of Stockholders' Equity
for Each of the Three Years in the Period Ended January 29, 2000 .... F-5
Consolidated Statements of Cash Flows for Each of the Three Years
in the Period Ended January 29, 2000 ................................ F-6
Notes to Consolidated Financial Statements ............................ F-7
Schedule
Schedule II--Valuation and Qualifying Accounts ........................ F-20
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Board of Directors and Stockholders
Cygne Designs, Inc.
We have audited the accompanying consolidated balance sheets of Cygne Designs,
Inc. and Subsidiaries as of January 29, 2000 and January 30, 1999 and the
related consolidated statements of operations, stockholders' equity and cash
flows for each of the three years in the period ended January 29, 2000. Our
audit also included the financial statement schedule listed in the Index at Item
14(a). These financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements and schedule based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Cygne
Designs, Inc. and Subsidiaries at January 29, 2000 and January 30, 1999 and the
consolidated results of their operations, changes in their stockholders' equity
and their cash flows for each of the three years in the period ended January 29,
2000, in conformity with accounting principles generally accepted in the United
States. Also, in our opinion, the related financial statement schedule when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
ERNST & YOUNG LLP
New York, New York
April 7, 2000
F-2
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JANUARY JANUARY
29, 2000 30, 1999
---------- ----------
(In thousands,
except share and
per share amounts)
ASSETS
Current assets:
Cash (includes restricted cash of $722 and $669,
respectively)..................................... $ 7,020 $ 3,686
Trade accounts receivable, net .................... 1,853 8,242
Inventory ......................................... 2,421 2,705
Assets held for sale .............................. -- 4,700
Other receivables and prepaid expenses ............ 402 996
------- -------
Total current assets ........................ 11,696 20,329
Fixed assets, net ..................................... 2,472 2,720
Other assets .......................................... 600 550
------- -------
Total assets ................................ $14,768 $23,599
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term borrowings .............................. $ -- $ 2,754
Accounts payable ................................... 1,200 4,579
Accrued expenses ................................... 2,448 4,140
Income taxes payable ............................... 5,977 6,080
------- -------
Total current liabilities ................... 9,625 17,553
Stockholders' equity:
Preferred Stock, $0.01 par value; 1,000,000
shares authorized: none issued and outstanding ... -- --
Common Stock, $0.01 par value; 25,000,000 shares
authorized: 12,438,038 shares issued and
outstanding ....................................... 124 124
Paid-in capital ..................................... 120,918 120,918
Accumulated deficit ................................. (115,899) (114,872)
Foreign currency translation adjustment ............. -- (124)
------- -------
Total stockholders' equity .................. 5,143 6,046
------- -------
Total liabilities and stockholders' equity .. $14,768 $23,599
======= =======
SEE ACCOMPANYING NOTES.
F-3
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
January January January
29, 2000 30, 1999 31, 1998
--------- --------- ---------
($ in thousands
except per share amounts)
Net sales ................................ $55,398 $43,013 $43,379
Cost of goods sold ....................... 50,657 42,753 43,063
------- ------- --------
Gross profit ............................. 4,741 260 316
Selling, general and administrative
expenses ................................ 3,874 4,381 10,331
Provision for impairment of Knit
business assets ......................... 1,625 2,564 --
(Recoupment) provision for lease
termination expenses .................... (186) (902) 3,964
Amortization of intangibles .............. -- 364 364
------- ------- --------
Loss from operations ..................... (572) (6,147) (14,343)
Interest income .......................... (122) (428) (461)
Interest expense ......................... 530 337 378
------- ------- --------
Loss before income taxes ................. (980) (6,056) (14,260)
Provision for income taxes ............... 47 269 204
------- ------- --------
Net loss ................................. ($1,027) ($6,325) ($14,464)
======= ======= ========
Net loss per share -- basic .............. $(0.08) $(0.51) $ (1.16)
======= ======= ========
Weighted average number of common
shares outstanding ....................... 12,438 12,438 12,438
======= ======= ========
Net loss per share assuming dilution ..... $(0.08) $(0.51) $ (1.16)
======= ======= ========
Weighted average number of common
shares and dilutive securities .......... 12,438 12,438 12,438
======= ======= ========
SEE ACCOMPANYING NOTES.
F-4
<PAGE>
<TABLE>
<CAPTION>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
COMMON STOCK Foreign
------------ PAID-IN Currency
NUMBER OF ------- Translation (Accumulated
SHARES AMOUNT CAPITAL Adjustment Deficit) TOTAL
------ ------ ------- ---------- -------- -----
($ In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance at February 1, 1997 .......................... 12,438 $124 $120,918 $ -- $(94,083) $26,959
Foreign currency translation adjustment ........... -- -- -- (116) -- (116)
Net loss for year ended January 31, 1998 .......... -- -- -- -- (14,464) (14,464)
------ ---- -------- ----- -------- -------
Comprehensive loss for year ended January 31, 1998 ... -- -- -- -- -- (14,580)
------ ---- -------- ----- -------- -------
Balance at January 31, 1998 .......................... 12,438 124 120,918 (116) (108,547) (12,379)
-
Foreign currency translation adjustment ............ -- -- -- (8) -- (8)
------ ---- -------- ----- -------- -------
Net loss for year ended January 30, 1999 ........... -- -- -- -- (6,325) (6,325)
-------
Comprehensive loss for year ended January 30, 1999 ... -- -- -- -- -- (6,333)
Balance at January 30, 1999 .......................... 12,438 124 120,918 (124) (114,872) 6,046
Foreign currency translation adjustment ........... -- -- -- 124 -- 124
Net loss for year ended January 29, 2000 .......... -- -- -- -- (1,027) (1,027)
-------
Comprehensive loss for year ended January 29, 2000 ... -- -- -- -- -- (903)
------ ---- -------- ----- -------- -------
Balance at January 29, 2000 .......................... 12,438 $124 $120,918 $ -- $(115,899) $ 5,143
====== ==== ======== ===== ======== =======
</TABLE>
SEE ACCOMPANYING NOTES
F-5
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended
-----------------------------------
January January January
29, 2000 30, 1999 31, 1998
-------- -------- ---------
($ IN THOUSANDS)
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss ............................................ $(1,027) $(6,325) $(14,464)
Adjustments to reconcile net loss to net
cash provided by (used in) operating
activities
Provision for impairment of Knit
business assets ............................... 1,625 2,564 --
Amortization of goodwill ....................... -- 364 364
Depreciation ................................... 449 469 966
Write-off of fixed assets ...................... -- -- 1,857
(Recoupment) provision for lease
termination expense ........................... (186) (902) 2,107
Rent expense not currently payable ............. -- -- 57
Changes in operating assets and liabilities:
Trade accounts receivable ................... 6,409 (2,300) 1,227
Inventory ................................... 2,168 (2,120) 1,097
Other receivables and prepaid
expenses ................................... (302) 621 1,816
Accounts payable ............................ (3,376) 835 (1,034)
Accrued expenses ............................ (2,186) (1,594) (3,121)
Income taxes payable ........................ (103) 12 84
------- ------- --------
Net cash provided by (used in) operating
activities ......................................... 3,471 (8,376) (9,044)
INVESTING ACTIVITIES
Proceeds from Knit Disposition, net ................. 2,627 -- --
Purchase of fixed assets ............................ (84) (279) (754)
Other assets ........................................ (50) (12) (501)
------- ------- --------
Net cash provided by (used in) investing
activities ......................................... 2,493 (291) (1,255)
FINANCING ACTIVITIES
Short-term borrowings, net .......................... (2,754) 1,435 (63)
(Decrease) in long-term debt, net ................... -- -- (842)
------- ------- --------
Net cash (used in) provided by financing activities (2,754) 1,435 (905)
Effect of exchange rate changes on cash ............. 124 (8) (116)
------- ------- --------
Net increase (decrease) in cash ..................... 3,334 (7,240) (11,320)
Cash at beginning of year ........................... 3,686 10,926 22,246
------- ------- --------
Cash at end of year ................................. $7,020 $3,686 $10,926
======= ======= ========
SUPPLEMENTAL DISCLOSURES
Income taxes paid ................................... $445 $264 $120
Interest paid ....................................... 530 336 310
</TABLE>
SEE ACCOMPANYING NOTES
F-6
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JANUARY 29, 2000
1. SIGNIFICANT ACCOUNTING POLICIES
PRINCIPAL BUSINESS ACTIVITY
Cygne Designs, Inc. ("Cygne") and its subsidiaries (collectively, the "Company")
are engaged in private label manufacturing of women's woven career and casual
apparel.
Since the sale of the Israel-based Knit business, the Company has contacted
potential customers concerning the sale of Knit products under the customers'
own labels. In addition, the Company has arrangements in place to produce Knit
products in Guatemala and China. While the Company has no confirmed orders at
this time, the Company expects that such orders will be forthcoming. Therefore,
the Company has not recorded the Knit business as a discontinued operation.
FISCAL YEAR
The Company's fiscal year ends on the Saturday nearest to January 31. A year
refers to the fiscal year of the Company commencing in that calendar year and
ending on the Saturday nearest January 31 of the following year.
ORGANIZATION AND PRINCIPLES OF COMBINATION AND CONSOLIDATION
The consolidated financial statements include the accounts of Cygne and its
subsidiaries. All material intercompany balances and transactions were
eliminated in consolidation and combination.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
CASH EQUIVALENTS
The Company considers all highly-liquid financial instruments with a maturity of
three months or less when purchased to be cash equivalents. Restricted cash
represents cash committments under ceratin letters of credit.
INVENTORY
Inventory is stated at the lower of cost (determined on a first-in, first-out
basis) or market.
F-7
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
DEPRECIATION AND AMORTIZATION
Depreciation of property and equipment is provided for by the straight-line
method over the estimated useful lives of the assets. Leasehold improvements are
amortized using the straight-line method over the term of the related lease.
REVENUE RECOGNITION
Revenues are recorded at the time of shipment of merchandise. The Company
establishes reserves for sales returns and allowances. Such reserves amounted to
$212,000 and $102,000 at January 29, 2000 and January 30, 1999, respectively.
FOREIGN CURRENCY TRANSLATION
As of January 29, 2000, the functional currency for the Company's foreign
operations is the U.S. Dollar. In prior years, the functional currency for
certain of the Company's foreign operations was the applicable foreign currency
of the country in which it operated. The translation from the applicable foreign
currencies to U.S. dollars is performed for balance sheet accounts using current
exchange rates in effect at the balance sheet date and for revenue and expense
accounts using a weighted average exchange rate during the period.
FAIR MARKET VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of short-term debt approximates fair value.
NET LOSS PER SHARE
The Company computes net loss per share in accordance with Financial Accounting
Standards Board SFAS No. 128, "Earnings per Share". In computing dilutive loss
per share for the years ended January 29, 2000, January 30, 1999 and January 31,
1998, no effect has been given to outstanding options since the exercise of any
of these items would have an antidilutive effect on net loss per share.
F-8
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
GOODWILL
Goodwill included the excess of cost over fair value of net assets acquired.
In 1998, management, as a result of the proposed sale of the Knit business,
determined that the remaining goodwill (relating to the Knits business) was
impaired. The write-off of the goodwill is included in the 1998 Statement of
Operations under the caption "Provision for impairment of Knit business assets."
2. DISPOSITION OF COMPANIES
On November 15, 1999, the Company consummated the sale of its Knit business to
Jordache Limited ("Jordache").The assets transfered to Jordache consisted of
substantially all of the assets used by the Knit business in the manufacture of
women's knit clothing, including machinery, equipment, raw materials, leases,
rental agreements, supplies used in the business, furniture, computer hardware
and software, and certain operating data and the records of MTGI and network
equipment, as well as all of the outstanding stock of Wear & Co. S.r.l.
("Wear"). MTGI was the Company's wholly-owned Israeli subsidiary and Wear was
the Company's wholly-owned Italian subsidiary. The sale did not include cash,
accounts receivable and certain other assets of the MTGI business. The
liabilities assigned to, and assumed by, Jordache are all obligations of MTGI
under the contracts and registration included within the assets sold to
Jordache. Jordache provided financing to the Company in connection with certain
knit product purchase orders being manufactured by MTGI prior to the closing.
In consideration of the sale to Jordache of the assets, Jordache paid the
Company approximately $4.7 million before transaction costs. The Company has
used the proceeds from the sale together with MTGI retained cash and collections
of MTGI accounts receivable to pay transaction costs, repay MTGI bank
borrowings, and to pay other MTGI liabilities.
In connection with the Company's agreement to sell its Knit business, the
Company recorded on the 1999 consolidated statements of operations a provision
of impairment of Knit business assets in the amount of $1,625,000.
F-9
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. (RECOUPMENT) PROVISION FOR LEASE TERMINATION EXPENSES
In 1997, the Company provided for lease termination expenses of $3,964,000 as a
result of the Company's decision to relocate from its existing New York office
and to seek substantially smaller New York office space. On March 1, 1999, the
Company completed its relocation from its existing New York office and the
Landlord released the Company from any contingent rent liability on its New York
space it sublet. The actual expenses in connection with this lease termination
approximated $2,876,000. Therefore, $902,000 of this provision was reversed in
1998, and the remaining unused balance of $186,000 of the original provision was
reversed in 1999.
4. INVENTORY
Inventory consists of the following:
JANUARY January
29, 2000 30, 1999(1)
--------- ------------
($ IN THOUSANDS)
Raw materials and Work-in-Process .......... $2,186 $2,310
Finished goods ............................. 235 395
------ ------
$2,421 $2,705
====== ======
(1) Excludes $3,426,000 of inventory of the Knit business classified as assets
held for sale.
5. FIXED ASSETS
Fixed assets are stated at cost, less accumulated depreciation and amortization
and are summarized below together with estimated useful lives used in computing
depreciation and amortization:
F-10
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JANUARY JANUARY ESTIMATED
29, 2000 30, 1999(1) USEFUL LIVES
-------- ----------- ------------
($ IN THOUSANDS)
Land and building ................ $ 902 $ 902 30 years
Equipment, furniture, and
fixtures ........................ 2,069 1,999 2-10 years
Leasehold improvements ........... 924 924 Term of lease
Vehicles ......................... 78 78 5 years
------ ------
3,973 3,903
Less accumulated depreciation
and amortization ................ 1,501 1,183
------ ------
$2,472 $2,720
====== ======
(1) Excludes $842,000 of net fixed assets of the Knit business classified as
assets held for sale.
6. CREDIT FACILITIES
The Company obtains letters of credit from domestic banks secured by a cash
deposit from the Company. At January 29, 2000 and January 30, 1999 the Company
had restricted cash at a bank of $722,000 and $669,000, respectively, to secure
letters of credit.
The Company had a credit facility with an Israeli bank to finance the Knit
operations. On November 4, 1999, the outstanding balance under this facility was
repaid and the facility terminated.
7. STOCK OPTIONS
Pursuant to an employee Stock Option Plan, as amended, the Company may grant to
eligible individuals incentive stock options as defined in the Internal Revenue
Code ("IRC") and non-qualified stock options. An aggregate of 1,700,000 shares
of common stock have been reserved for issuance under the Plan. The exercise
price for incentive options may not be less than 100% (110% for holders of 10%
or more of the Company's outstanding shares) of the fair market value of the
shares on the date of grant, and at least par value of the common stock with
respect to the non-qualified stock options, have a ten-year term (five years for
holders of 10% or more of the Company's outstanding shares in the case of
incentive stock options) and vest at the discretion of the Board of Directors.
F-11
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
7. STOCK OPTIONS (CONTINUED)
Pursuant to a Stock Option Plan for Non-Employee Directors adopted on April 15,
1993, the Company will automatically grant to eligible non-employee directors
options to purchase 10,000 shares of Common Stock upon the directors' initial
appointment to the Board of Directors and options to purchase 2,000 shares of
Common Stock on each individual director's anniversary date from initial
appointment. Options granted under the Directors' Plan do not qualify as
incentive stock options under the IRC. The options have an exercise price of
100% of fair market value on the date of grant, have a ten-year term and vest,
pro-rata, over four years.
The sale of the Knit business constituted a "change in control of the Company"
for purposes of the Company's stock option plans. As a result, all outstanding
stock options became immediately exercisable.
The Company has elected to follow Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" (APB 25) and related interpretations
in accounting for its employee stock options. Under APB 25, because the exercise
price of the Company's employee stock options equals the market price of the
underlying stock on the date of grant, no compensation expense is recognized.
Had compensation cost been determined based upon the fair value at the grant
date for awards consistent with the methodology prescribed by SFAS No. 123 for
the year ended January 29, 2000 the Company's net loss and net loss per share
would have increased by $1,680 or $0.00 per share. For the years ended January
30, 1999 and January 31, 1998, the Company's net loss and net loss per share
would have increased by $1,000 or $0.00 per share.
The fair value of these options was estimated at the date of grant using a
Black-Scholes option pricing model with the following assumptions for 1999,
1998, and 1997: risk-free interest rate of 5%; volatility factor of the expected
market price of the Company's common stock of 1.69 for January 29, 2000, 1.527
for January 30, 1999, and 0.76 for January 31, 1998; expected life of 6 years;
and a dividend yield of zero.
As any options granted in the future will also be subject to the fair value pro
forma calculations, the pro forma adjustments for fiscal years 1999, 1998, and
1997 may not be indicative of future years.
The weighted average fair value of options, calculated using the Black-Scholes
option pricing model, granted during 1999, 1998 and 1997 is $0.15, $0.28 and
$0.34, respectively. Exercise prices for options issued between February 1, 1997
through January 29, 2000 ranged from $0.12 to $23.50. The weighted-average
remaining contractual life of those options is 3.1 years.
F-12
<PAGE>
<TABLE>
<CAPTION>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
7. STOCK OPTIONS (CONTINUED)
The following summarizes stock option transactions:
EMPLOYEE STOCK NON-EMPLOYEE OTHER EMPLOYEE STOCK
OPTION PLAN DIRECTORS PLAN OPTION ARRANGEMENTS
-------------- -------------------- -------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE NUMBER AVERAGE AVERAGE TOTAL
NUMBER EXERCISE EXERCISE OF EXERCISE EXERCISE NUMBER EXERCISE EXERCISE NUMBER
OF SHARES PRICE RANGE PRICE SHARES PRICE RANGE PRICE OF SHARES PRICE RANGE PRICE OF SHARES
--------- ----------- -------- ------ ----------- -------- --------- ----------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Options outstanding at
February 1, 1997 ........ 720,500 $1.00-$22.75 32,000 $1.13-$23.50 125,000 $2.00-$22.50 877,500
Options granted in 1997 .. -- 4,000 $0.28-$0.69 $0.49 -- 4,000
Options canceled in 1997 . (215,250) $2.00-$22.75 $4.07 -- (215,250)
-------- ------ ------- --------
Options outstanding at
January 31, 1998 ........ 505,250 $1.00-$13.38 36,000 $0.28-$23.50 125,000 $2.00-$22.50 666,250
Options granted in 1998 .. 20,000 $0.31 $0.31 4,000 $0.12-$0.28 $0.20 -- 24,000
Options canceled in 1998 . (93,250) $2.00 -- -- (93,250)
-------- ------- ------- --------
Options outstanding
at January 30, 1999 ..... 432,000 $0.31-$13.88 40,000 $0.12-$23.50 125,000 $2.00-$22.50 597,000
Options granted in 1999 .. -- 2,000 $0.16 -- 2,000
Options canceled in 1999 . (134,000) $2.00 (20,000) $0.12-$22.50 (65,000) $2.00-$22.50 (219,000)
-------- ------- ------- --------
Options outstanding at
January 29, 2000 ........ 298,000 $0.31-$13.88 22,000 $0.16-$23.50 60,000 $2.00 380,000
======= ====== ====== =======
At January 29, 2000
options exercisable ..... 298,000 22,000 60,000 380,000
======= ====== ====== =======
F-13
</TABLE>
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
8. CONCENTRATIONS OF RISK
For years 1999, 1998, and 1997, sales to The Limited, Inc. accounted for 45%,
59%, and 65%, respectively, of the Company's net sales. For years 1999, 1998,
and 1997, excluding sales of the Knit division, sales to The Limited Inc.
accounted for 98%, 94%, and 68%, respectively, of the Company's net sales. At
January 29, 2000 and January 30, 1999, The Limited, Inc. accounted for 82% and
56%, respectively, of trade accounts receivable. At January 29, 2000 and January
30, 1999, excluding the Knit division, The Limited Inc. accounted for 82% and
100%, respectively, of trade accounts receivable.
9. LEASES, COMMITMENTS AND LITIGATION
LEASES
At January 29, 2000, the Company's lease commitment was $75,000 through April
30, 2000. Effective May 1, 2000, the Company entered into a new lease with a
lease commitment through April 30, 2001 of $252,000.
Total rent expense under the operating leases for the years ended January 29,
2000, January 30, 1999, and January 31, 1998, amounted to approximately
$355,000, $968,000 and $1,036,000, respectively.
COMMITMENTS
The Company has employment agreements with certain officers and key employees
through 2001. Future minimum aggregate annual payments under these agreements
amount to approximately $827,000 in 2000 and $208,000 in 2001. Certain of the
officers and employees may receive additional compensation based upon the
income, as defined, of the Company or one or more of its subsidiaries.
LEGAL PROCEEDINGS
In 1998 the Company settled a shareholder class action lawsuit. As part of the
settlement, the Company contributed approximately $2,100,000 to the settlement.
The Company also incurred legal fees of approximately $500,000 in connection
with this lawsuit.
The Company is involved in various legal proceedings that are incidental to the
conduct of its business, none of which the Company believes could reasonably be
expected to have a material adverse effect on the Company's financial condition
or results of operations or cash flows. See Note 10 for information regarding
tax audits.
F-14
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
10. INCOME TAXES
Income taxes are provided using the liability method. Under this method,
deferred income taxes reflect tax carryforwards and the net tax effects of
temporary differences between the carrying amount of assets and liabilities for
financial statement and income tax purposes, as determined under enacted tax
laws and rates. The financial effect of changes in tax laws or rates is
accounted for in the period of enactment. Significant components of the
Company's deferred tax assets are as follows:
YEAR ENDED
----------------------------
JANUARY January
29, 2000 30, 1999
---------- ---------
($ IN THOUSANDS)
Deferred tax assets:
Net operating loss carryforwards ...... $44,000 $42,000
------- -------
Valuation allowance ................... (44,000) (42,000)
======= =======
Total deferred tax assets ................. $0 $0
== ==
For financial reporting purposes, income before income taxes includes the
following components:
YEAR ENDED
------------------------------------------
JANUARY JANUARY JANUARY
29, 2000 30, 1999 31, 1998
-------- -------- ---------
($ IN THOUSANDS)
Pretax income (loss):
United States ............ $2,468 $(3,555) $(13,901)
Foreign .................. (3,448) (2,501) (359)
------ ------- --------
$(980) $(6,056) $(14,260)
====== ======= ========
F-15
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
10. INCOME TAXES (CONTINUED)
Significant components of the provision for income taxes are as follows:
YEAR ENDED
----------------------------------------
JANUARY JANUARY JANUARY
29, 2000 30, 1999 31, 1998
-------- --------- ---------
($ IN THOUSANDS)
Current:
Federal ............... $ -- $ -- $ --
Foreign ............... 17 182 --
State and local ....... 30 87 204
------ ------- ------
Total ..................... $ 47 $ 269 $ 204
====== ======= ======
The reconciliation of income tax at the U.S. federal statutory tax rates to
income tax expense is as follows:
<TABLE>
<CAPTION>
YEAR ENDED
-------------------------------------------------------
JANUARY JANUARY JANUARY
29, 2000 30, 1999 31, 1998
--------------- ------------- --------------
($ IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Tax at U.S. statutory ......
rates $(333) (34.0%) $(2,059) (34.0%) $(4,848) (34.0)%
Loss, no benefit provided .. 333 34.0 2,059 34.0 4,848 34.0
Foreign and state income
taxes, net of federal
tax benefit ............... 47 4.8 269 4.4 204 1.4
----- --- ------- --- ------- ---
$ 47 4.8% $ 269 4.4% $ 204 1.4%
===== === ======= === ======= ===
</TABLE>
As of January 29, 2000, based upon tax returns filed and to be filed the Company
expects to report a net operating loss carryforward for U.S. Federal income tax
purposes of approximately $114,000,000. If unused, these loss carryforwards will
expire in the Company's taxable years ending in 2011 through 2015. Under Section
382 of the U.S. Internal Revenue Code, if there is a more than 50% ownership
change (as defined therein) with respect to the Company's stock, the Company's
loss carryforwards for U.S. Federal and New York State and City tax purposes
would be virtually eliminated.
F-16
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
As of January 29, 2000, based upon tax returns filed and to be filed the Company
expects to report net operating loss carryforwards for New York State and City
tax purposes (on a separate company basis) of approximately $75,000,000. If
unused, these loss carryforwards will expire in the Company's taxable years
ending in 2011 through 2014.
TAX AUDITS
The U.S. Internal Revenue Service (the "IRS") is conducting an audit of the U.S.
Federal income tax returns filed by GJM (US) Inc., a wholly-owned subsidiary,
for its taxable years ending December 31, 1990 through October 7, 1994 (the date
GJM (US) Inc. was acquired by the Company). To date, the IRS has informally
proposed a Federal income tax deficiency against GJM (US) Inc. of approximately
$16 million (including some penalties but not interest). Depending on the amount
of the deficiency, the amount of interest could be significant. The outcome of
the GJM (US) Inc. audit cannot be predicted at this time. Although the Company
is disputing the proposed adjustment, and believes that it has established
appropriate reserves with respect to this matter, an adverse decision in this
matter would have a material adverse impact on the Company and its financial
condition, results of operations or cash loss.
On October 31, 1999, the date of sale of the Company's Knit business, the
Company's wholly-owned Israeli subsidiary, M.T.G.I.--Textile Manufacturers Group
(Israel) Ltd. ("MTGI"), had its Israeli tax free status terminated retroactive
to January 1, 1994. The Israeli Tax Authority ("Authority") is in the process of
assessing the tax due by MTGI on account of the termination of MTGI's tax free
status for years ending December 31, 1994 through December 31, 1997. To date,
the Authority has not issued a report detailing the MTGI tax assessment for this
period. Although the Company believes that it has established appropriate
accounting reserves with respect to this matter, an adverse decision in this
matter could have a material adverse impact on the Company and its financial
condition, results of operations, or cash flow.
The Company is subject to other ongoing tax audits in several jurisdictions.
Although there can be no assurances, the Company believes any adjustments that
may arise as a result of these other audits will not have a material adverse
effect on the Company's financial position.
11. SEGMENT INFORMATION
Based on the criteria in SFAS No. 131, the Company operates in two segments of
the apparel market: woven career and casual women's sportswear and knit career
and casual women's sportswear. The Company sources and manufacturers garments
which have been designed and developed by the customer. The Company sold its
Knit business on November 15, 1999, effective as of October 31, 1999 (see Note
2).
F-17
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Net sales to unaffiliated customers and identifiable assets were as follows:
<TABLE>
<CAPTION>
Knit Woven Other
Division Division Corporate Divisions Total
-------- -------- --------- --------- -----
($ IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
YEAR ENDED JANUARY 29, 2000
Net sales ........................... $ 32,008 $ 23,390 $ -- $ -- $ 55,398
Gross profit ........................ 1,480 3,261 -- -- 4,741
Selling, general and administrative . 685 2,005 1,184 -- 3,874
Provision for impairment of
Knit business assets ................ 1,625 -- -- -- 1,625
(Recoupment) provision for lease
termination ......................... -- -- (186) -- (186)
-------- -------- -------- --------- --------
(Loss) from operations .............. $ (830) $ 1,256 $ (998) -- (572)
======== ======== ======== ========= ========
Interest income ..................... 122
Interest expense .................... 530
--------
(Loss) income before taxes .......... (980)
Provision for income taxes .......... 47
--------
Net (loss) .......................... $ (1,027)
========
Depreciation expense ................ $ 131 $ 303 $ 15 -- $ 449
-------- -------- -------- --------- --------
Identifiable assets ................. -- $ 6,919 $ 7,849 -- $ 14,768
======== ======== ======== ========= ========
Knit Woven Other
Division Division Corporate Divisions Total
-------- -------- --------- --------- -----
($ IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
YEAR ENDED JANUARY 30, 1999
Net sales ........................... $ 25,891 $ 17,122 $ -- $ -- $ 43,013
Gross profit (loss) ................. 1,053 (793) -- -- 260
Selling, general and administrative . 841 1,493 2,047 -- 4,381
Amortization of intangibles ......... 364 -- -- -- 364
Provision for impairment of
Knit business assets ............... 2,564 -- -- -- 2,564
(Recoupment) provision for lease
termination ....................... -- -- (902) -- (902)
-------- -------- -------- --------- --------
(Loss) from operations .............. $ (2,716) $ (2,286) $ (1,145) -- (6,147)
========
Interest income ..................... 428
Interest expense .................... 337
--------
(Loss) income before taxes .......... (6,056)
Provision for income taxes .......... 269
--------
Net (loss) .......................... $ (6,325)
Depreciation expense ................ $ 173 $ 296 -- -- $ 469
========
Identifiable assets ................. $ 10,326 $ 9,705 $ 3,568 -- $ 23,599
======== ======== ======== ========= ========
</TABLE>
F-18
<PAGE>
CYGNE DESIGNS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
<TABLE>
<CAPTION>
Knit Woven Other
Division Division Corporate Divisions Total
-------- -------- --------- --------- -----
($ IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
YEAR ENDED JANUARY 31, 1998
Net sales ........................... $ 28,886 $ 14,290 $ -- $ 203 $ 43,379
Gross profit (loss) ................. 656 814 -- (1,154) 316
Selling, general and administrative . 1,292 1,462 4,665 2,912 10,331
Amortization of intangibles ......... 364 -- -- -- 364
Provision for lease termination ..... -- -- 3,964 -- 3,964
--------
(Loss) from operations .............. $ (1,000) $ (648) $ (8,629) $ (4,066) (14,343)
========
Interest income ..................... (461)
Interest expense .................... 378
--------
(Loss) before income tax ............ (14,260)
Provision for income taxes .......... 204
--------
Net (loss) .......................... $(14,464)
========
Depreciation expense ................ $ 240 $ 291 -- $ 433 966
======== ======== ======== ========= ========
Identifiable assets ................. $ 10,873 $ 7,249 $ 11,628 $ -- $ 29,750
======== ======== ======== ========= ========
</TABLE>
12. EMPLOYEE BENEF IT PLANS
The Company does not provide any post employment or post retirement b enefits to
its current or former employees. The Company implemented a 401(k) plan for
domestic employees on February 2, 1997. The Company will match 33% of the
employee's contributions up to 3% of the employee's voluntary contribution.
13. RELATED PARTY TRANSACTIONS
During 1997, a company controlled by a shareholder paid the Company $292,000 for
design fees and commissions.
F-19
<PAGE>
<TABLE>
<CAPTION>
CYGNE DESIGNES, INC. AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
Balance at Charged to
Beginning of Costs and Deductions Balance at
Description Period Expenses (Describe)* End of Period
----------- ------------ ----------- ---------- -------------
($ in thousands)
<S> <C> <C> <C> <C>
Reserves for returns and allowances:
Year ended January 31, 1998 .............. $1,542 $1,526 $2,959 $ 109
Year ended January 30, 1999 .............. 109 641 648 102
Year ended January 29, 2000 .............. 102 1,081 971 212
- -----------------
*Write-off of uncollectible amounts
</TABLE>
F-20
=======================================
STANDARD FORM OF OFFICE LEASE 3/1/86
The Real Estate Board of New York, Inc.
=======================================
AGREEMENT OF LEASE, made as of this 20th day of March, 2000, between L.H.
CHARNEY ASSOCIATES, a New York Partnership, c/o L.H. Charney Associates, Inc.
1410 Broadway, New York, NY 10018,
party of the first part, hereinafter referred to as OWNER, or LANDLORD, and
CYGNE DESIGNS, INC., a Delaware Corporation, with a present address at 680 Fifth
Avenue, NY, NY, and with its principal office and showroom address to be at 1410
Broadway, NY, NY 10018.
party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner
a portion of the tenth (10th) floor, designated as Unit 1002.
in the building known as 1410 Broadway
in the Borough of Manhattan , City of New York, for the term of one (1) Year.
(or until such term shall sooner cease and expire as herinafter provided) to
commence on the first day of May, two thousand , and to end on the 30th day of
April, two thousand and one both dates inclusive, at an annual rental rate of
$252,640.00, 5/01/00 to 4/30/2001 which Tenant agrees to pay in lawful money of
the United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, in equal monthly installments in
advance on the first day of each month during said term, at the office of Owner
or such other place as Owner may designate, without any set off or deduction
whatsoever, except that Tenant shall pay the first monthly installment(s) on the
execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby convenant
as follows:
Rent 1. Tenant shall pay the rent as above and as hereinafter
Occupancy provided.
2. Tenant shall use and occupy demised premises for
showroom(s) and general executive offices in connection
with Tenant's apparel-related business only, and for no
other purpose.
Tenant 3. Tenant shall make no changes in or to the demised premises
Alterations: of any nature without Owner's prior written consent. Subject
to the prior written consent of Owner, and to the provisions
of this article, Tenant at Tenant's expense, may make alterations,
installations, additions or improvements which are non-structural and which do
not affect utility services or plumbing and electrical lines, in or to the
interior of the demised premises by using contractors or mechanics first
approved by Owner. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner and Tenant
agrees to carry and will cause Tenant's contractors and sub-contractors to carry
such workman's compensation, general liability, personal and property damage
insurance as Owner may require. If any mechanic's lien is filed against the
demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty days thereafter, at Tenant's expense, by filing the bond required by law.
All fixtures and all paneling, partitions, railings and like installations,
installed in the premises at any time, either by Tenant or by Owner in Tenant's
behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises. Nothing in this Article shall
be construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
Maintenance 4. Tenant shall, throughout the term of this lease, take good
and care of the demised premises and the fixtures and
Repairs appurtenances therein. Tenant shall be responsible for all
damage or injury to the demised premises or any other part of
the building and the systems and equipment thereof, whether requiring structural
or nonstructural repairs caused by or resulting from carelessness, omission,
neglect or improper conduct of Tenant. Tenant's subtenants, agents, employees,
invitees or licensees, or which arise out of any work, labor, service or
equipment done for or supplied to Tenant, or any subtenant or arising out of the
installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the contractor for
the trade or trades in question, selected from a list of at least two
contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
building, including the structural portions of its demised premises, and the
public portions of the building interior and the building plumbing, electrical,
heating and ventilating systems (to the extent such systems presently exist)
serving the demised premises. Tenant agrees to give prompt notice of any
defective condition in the premises for which Owner may be responsible
hereunder. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or others making repairs, alterations,
additions or improvements in or to any portion of the building or the demised
premises or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of rent by reason of any failure of Owner to comply with the covenants of this
or any other article of this Lease. Tenant agrees that Tenant's sole remedy at
law in such instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 shall not apply in the case of fire
or other casualty which are dealt with in Article 9 hereof.
Window 5. Tenant will not clean, nor require, permit, suffer or allow
Cleaning: any window in the demised premises to be cleaned from the
outside in violation of Section 202 of the Labor Law or any
other applicable law or of the Rules of the Board of Standards and Appeals, or
of any other Board or body having or asserting jurisdiction.
Requirements 6. Prior to the commencement of the lease term, Tenant is then
of Law, in possession, and at all times thereafter Tenant, at Tenant's
Fire Insurance, sole cost and expense, shall promptly comply will all present
Floor Loads: and future laws, orders and regulations of all state, federal,
municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, whether or not
arising out of Tenant's use or manner of use thereof, (including Tenant's
permitted use) or, with respect to the building if arising out of Tenant's
<PAGE>
use or manner of use of the premises or the building (including the use
permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operations therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for a
criminal offense or constitute a default under any lease or mortgage under which
Owner may be obligated, or cause the demised premises or any part thereof to be
condemned or vacated. Tenant shall not do or permit any act or thing to be done
in or to the demised premises which is contrary to law, or which will invalidate
or be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Owner with respect to the demised
premises or the building of which the demised premises form a part, or which
shall or might subject Owner to any liability or responsibility to any person or
for property damage. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
jurisdication, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article and if by reason of such failure the fire
insurance rate shall, at the beginning of this lease or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or "make-up" of rate for the building or demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgement, to absorb and
prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or
hereafter affect such leases or the real property of which demised premises are
a part and to all renewals, modifications, consolidations, replacements and
extensions of any such underlying leases and mortgages. This clause shall be
self-operative and no further instument of subordination shall be required by
any ground or underlying lessor or by any mortgagee, affecting any lease or the
real property of which the demised premises are a part. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Owner may
request.
Property -- 8. Owner or its agents shall not be liable for any damage to
Loss, Damage, property of Tenant or of others entrusted to employees of the
Reimburse- building, nor for loss of or damage to any property of Tenant
ment, Indem- by theft or otherwise, nor for any injury or damage to persons
nity: or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of Owner, its
agents, servants or employees. Owner or its agents will not be liable for any
such damage caused by other tenants or persons in, upon or about said building
or caused by operations in construction of any private, public or quasi public
work.
If at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened or bricked up, if
required by law) for any reason whatsoever including, but not limited to Owner's
own acts, Owner shall not be liable for any damage Tenant may sustain thereby
and Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall indemnify and save harmless
Owner against and from all liabilities, obligations, damages, penalties, claims,
costs and expenses for which Owner shall not be reimbursed by insurance,
including reasonable attorneys fees, paid, suffered or incurred as a result of
any breach by Tenant, Tenant's agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, or the carelessness,
negligence or improper conduct of the Tenant, Tenant's agents, contractors,
employees, invitees or licensees. Tentant's liability under this lease extends
to the acts and omissions of any sub-tenant, and any agent, contractor,
employee, invitee or licensee of any sub-tenant. In case any action or
proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction, 9. (a) If the demised premises or any part thereof shall be
Fire and Other damaged by fire or other casualty, Tenant shall give immediate
Casualty: notice thereof to Owner and this lease shall continue in full
force and effect except as hereinafter set forth. (b) If the
demised premises are partially damaged or rendered partially unusable by fire or
other casualty, the damage thereto shall be repaired by and at the expense of
Owner and the rent, until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the part of the
premises which is usable. (c) If the demised premises are totally damaged or
rendered wholly unusable by fire or other casualty, then the rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the premises shall have been repaired and restored by Owner
subject to Owner's right to elect not to restore the same as hereinafter
provided. (d) If the demised premises are rendered wholly unusable or (whether
or not the demised premises are damaged in whole or in part) the building shall
be so damaged that Owner shall decide to demolish it or to rebuild it, then, in
any of such events, Owner may elect to terminate this lease by written notice to
Tenant, given within 90 days after such fire or casualty, specifying a date for
the expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable expedition,
subject to delays due to adjustment of insurance claims, labor troubles and
causes beyond the Owner's control. After any such casualty, Tenant shall
cooperate with Owner's restoration by removing from the premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and movable
equipment, furniture, and other property. Tenant's liability for rent shall
resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, each party shall look
first to any insurance in its favor before making any claim against the other
party for recovery for loss or damage resulting from fire or other casualty, and
to the extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery against the other or any one claiming through or under each of them by
way of subrogation or otherwise. The foregoing release and waiver shall be in
force only if both releasors' insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefitting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the
party obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Owner will not carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Owner will not be obligated to repair any damage thereto or
replace the same. (f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
Eminent 10. If the whole or any part of the demised premises shall be
Domain: acquired or condemned by Eminent Domain for any public or
quasi public use or purpose, then and in that event, the term
of this lease shall cease and terminate from the date of title vesting in such
proceeding and Tenant shall have no claim for the value of any unexpired term of
said lease and assigns to Owner, Tenant's entire interest in any such award.
Assignment, 11. Tenant, for itself, its heirs, distributees, executors,
Mortgage, administrators, legal representatives, successors and assigns,
Etc.: expressly covenants that it shall not assign, mortgage or
encumber this agreement, nor underlet, or suffer or permit the
demised premises or any part thereof to be used by others, without the prior
written consent of Owner in each instance. Transfer of the majority of the stock
of a corporate Tenant shall be deemed an assignment. If this leases be assigned,
or if the demised premises or any part thereof be underlet or occupied by
anybody other than Tenant, Owner may, after default by Tenant, collect rent from
the assignee, under-tenant, or occupant, and apply the net amount collected to
the rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting.
Electric 12. Rates and conditions in respect to submetering or rent
Current: inclusion, as the case may be, to be added in RIDER attached
[GRAPHIC OMITTED] hereto. Tenant covenants and agrees that at all times its use
of electric current shall not exceed the capacity of existing
feeders to the building or the risers or wiring installation and Tenant may not
use any electrical equipment which, in Owner's opinion, reasonably exercised,
will overload such installations or interfere with the use thereof by other
tenants of the building. The change at any time of the character of electric
service shall in no wise make Owner liable or responsible to Tenant, for any
loss, damages or expenses which Tenant may sustain.
Access to 13. Owner or Owner's agents shall have the right (but shall
Premises: not be obligated) to enter the demised premises in any
emergency at any time, and, at other reasonable times, to
examine the same and to make such repairs, replacements and improvements as
Owner may deem necessary and reasonably desirable to the demised premises or to
any other portion of the building or which Owner may elect to perform, Tenant
shall permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided they are concealed within the walls, floor, or ceiling. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. Throughout the term hereof Owner shall have the right to
enter the demised premises at reasonable hours for the purpose of showing the
- -----------------
[GRAPHIC OMITTED] Rider to be added if necessary.
<PAGE>
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the premises,
Owner or Owner's agents may enter the same whenever such entry may be necessary
or permissible by master key or forcibly and provided reasonable care is
exercised to safeguard Tenant's property, such entry shall not render Owner or
its agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected. If during the last month of the term Tenant shall have
removed all or substantially all of Tenant's property therefrom, Owner may
immediately enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, or incurring liability to Tenant for any
compensation and such act shall have no effect on this lease or Tenant's
obligations hereunder.
Vault, 14. No Vaults, vault space or area, whether or not enclosed or
Vault Space, covered, not within the property line of the building is
Area: leased hereunder, anything contained in or indicated on any
sketch, blue print or plan, or anything contained elsewhere in
this lease to the contrary notwithstanding. Owner makes no representation as to
the location of the property line of the building. All vaults and vault space
and all such areas not within the property line of the building, which Tenant
may be permitted to use and/or occupy, is to be used and/or occupied under a
revocable license, and if any such license be revoked, or if the amount of such
space or area be diminished or required by any federal, state or municipal
authority or public utility, Owner shall not be subject to any liability nor
shall Tenant be entitled to any compensation or diminution or abatement of rent,
nor shall such revocation, diminution or requisition be deemed constructive or
actual eviction. Any tax, fee or charge of municipal authorities for such vault
or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy issued
for the building of which the demised premises are a part. Tenant has inspected
the premises and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any. In any event, Owner makes no representation as
to the condition of the premises and Tenant agrees to accept the same subject to
violations, whether or not of record.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by
sending of a written notice to Tenant within a reasonable time after the
happening of any one or more of the following events: (1) the commencement of a
case in bankruptcy or under the laws of any state naming Tenant as debtor; or
(2) the making by Tenant of an assignment or any other arrangement for the
benefit of creditors under any state statute. Neither Tenant nor any person
claiming through or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the premises demised but shall
forthwith quit and surrender the premises. If this lease shall be assigned in
accordance with its terms, the provisions of this Article 16 shall be applicable
only to the party then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent upon such reletting shall be
deemed to be the fair and reasonable rental value for the part or the whole of
the premises so re-let during the term of the re-letting. Nothing herein
contained shall limit or prejudice the right of the Owner to prove for and
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default: 17. (1) If Tenant defaults in fulfilling any of the
covenants of this lease other than the covenants for the
payment of rent or additional rent; or if the demised premises becomes vacant or
deserted; or if any execution or attachment shall be issued against Tenant or
any of Tenant's property whereupon the demised premises shall be taken or
occupied by someone other than Tenant; or if this lease be rejected under ss.
235 of Title 11 of the U.S. Code (bankruptcy code); or if Tenant shall fail to
move into or take possession of the premises within fifteen (15) days after the
commencement of the term of this lease, then, in any one or more of such events,
upon Owner serving a written five (5) days notice upon Tenant specifying the
nature of said default and upon the expiration of said (5) days, if Tenant shall
have failed to comply with or remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied within said five (5) day period, and if Tenant shall not have
diligently commenced during such default within such five (5) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such three (3) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid: or if Tenant shall make default
in the payment of the rent reserved herein or any item additional rent herein
mentioned or any part of either or in making another payment herein required:
then and in any such events Owner, without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise and the legal representative of Tenant or other occupant of demised
premises and remove their effects and hold the premises as if this lease not had
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of and renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of 18. In case of any such default, re-entry, expiration and/or
Owner and dispossess by summary proceedings or otherwise, (a) the rent
Waiver of shall become due thereupon and be paid up to the time of such
Redemption: re-entry, dispossess and/or expiration, (b) Owner may re-let
the premises or part or parts thereof, either in the name of
Owner or otherwise, for a term or terms, which may at Owner's option be less
than or exceed the period which would otherwise have constituted the balance of
the term of the lease and may grant concessions or free rent or charge a higher
rental than that in this lease, and/or (c) Tenant or the legal representative of
Tenant shall also pay Owner as liquidated damages for the failure of Tenant to
observe and perform said Tenant's covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. The failure of Owner to
re-let the premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages there shall
be added to the said deficiency expenses as Owner may incur in connection with
the re-letting, such as legal expenses, attorneys' fees, brokerage, advertising
and for keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to cover the
amount of the deficiency for any month shall not prejudice in any way the rights
of Owner to collect the deficiency for any month shall not prejudice in any way
the rights of Owner to collect the deficiency of subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole judgment, considers advisable and necessary for the purpose of re-letting
the demised premises, and the making of such alterations, repairs, replacements
and/or decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Owner shall in no event be liable any way
whatsoever for failure to re-let the demised premises, or in the event that the
demised premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in the
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of lease, or otherwise.
Fees and 19. If Tenant shall default in the observance or performance
Expenses of any term or covenant on Tenant's part to
be observed or performed under or by virtue of any of the
terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting, or defending any action or
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred
by reason of Tenant's default shall be deemed to be additional rent hereunder
and shall be paid by Tenant to Owner within five (5) days of rendition of any
bill or statement to Tenant therefor. If Tenant's lease term shall have expired
at the time of making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Owner as damages.
Building 20. Owner shall have the right at any time without the same
Alterations constituting an eviction and without incurring liability to
and Tenant therefor to change the arrangement and/or location of
Management: public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets, or other public parts of the
building and to change the name, number and designation by which the building
may be known. There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenants making any
repairs in the building or any such alterations, additions and improvements.
Furthermore, Tenant shall not have any claim against Owner by reason of Owner's
imposition of such controls of the manner of access to the building by Tenant's
social or business visitors as the Owner may deem necessary for the security of
the building and its occupants.
No Repre- 21. Neither Owner nor Owner's agents have made any
sentations by representations or promises with respect to the physical
Owner: condition of the building, the land upon which
<PAGE>
it is erected or the demised premises, the rents, leases, expenses of operation
or any other matter or thing affecting or related to the premises except as
herein expressly set forth and no rights, easements or licenses are acquired by
Tenant by implications or otherwise except as expressly set forth in the
provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End Of 22. Upon the expiration or other termination of the term of
Term: this lease, Tenant shall quit and surrender to Owner the
demised premises, broom clean, in good order and condition,
ordinary wear and damages which Tenant is not required to repair as provided
elsewhere in this lease excepted, and Tenant shall remove all its property.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of this lease. If the last day of the term of
this Lease or any renewal thereof, falls on Sunday, this lease shall expire at
noon on the preceding Saturday unless it be a legal holiday in which case it
shall expire at noon on the preceding business day.
Quiet 23. Owner covenants and agrees with Tenant that upon Tenant
Enjoyment: paying the rent and additional rent and observing and
performing all the terms, covenants and conditions, on
Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the premises hereby demised, subject, nevertheless, to the terms and
conditions of the lease including, but not limited to, Article 31 hereof and to
the ground leases, underlying leases and mortgages hereinbefore mentioned.
Failure 24. If Owner is unable to give possession of the demised
to Give premises on the date of the commencement of the term hereof,
Possession: because of the holding-over or retention of possession of any
tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or for any other
reason, Owner shall not subject to any liability for failure to give possession
on said date and the validity of the lease shall not be impaired under such
circumstances, nor shall the same be construed in any wise to extend the term of
this lease, but the rent payable hereunder shall be abated (provided Tenant is
not responsible for Owner's inability to obtain possession) until after Owner
shall have given Tenant written notice that the premises are substantially ready
for Tenant's occupancy. If permission is given to Tenant to enter into the
possession of the demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this lease, except
as to the covenant to pay rent. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or
to insist upon the strict performance of any covenant or
condition of this lease or any of the Rules or Regulations, set forth or
hereafter adopted by Owner, shall not prevent a subsequent act which would have
originally constituted a violation from having all the force and effect of an
original violation. The receipt by Owner of rent with knowledge of the breach of
any covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of 26. It is mutually agreed by and between Owner and Tenant that
Trial by Jury: the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other (except
for personal injury or property damage) on any matters whatsoever arising out of
or in any way connected with this lease, the relationship of Owner and Tenant,
Tenant's use of or occupancy of said premises, and any emergency statutory or
any other statutory remedy. It is further mutually agreed that in the event
Owner commences any summary proceeding for possession of the premises, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding including a counterclaim under Article 4.
Inability to 27. This Lease and the obligation of Tenant to pay rent
Perform: hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall
in no wise be affected, impaired or excused because Owner is unable to fulfill
any of its obligations under this lease or to supply or is delayed in supplying
any service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or decorations or is unable
to supply or is delayed in supplying any equipment or fixtures if Owner is
prevented or delayed from so doing by reason of strike or labor troubles of any
cause whatsoever including, but not limited to, government preemption in
connection with a Natural Emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by reason of the conditions of supply and demand which have been or are affected
by it or other emergency.
Bills and 28. Except as otherwise in this lease provided, a bill,
Notices: statement, notice or communication which Owner may desire or
be required to give to Tenant, shall be deemed sufficiently
given or rendered if, in writing delivered to Tenant personally or sent by
registered or certified mail addressed to Tenant of the building of which the
demised premises form a part or at the last known residence address or business
address of Tenant or left at any of the aforesaid premises addressed to Tenant,
and the time of the rendition of such bill or statement and of the giving of
such notice or communication shall be deemed to be the time when the same is
delivered to Tenant, mailed, or left at the premises as herein provided. Any
notice by Tenant to Owner must be served by registered or certified mail
addressed to Owner at the address first hereinabove given or at such other
address as Owner shall designate by written notice.
Services 29. As long as Tenant is not in default under any of the
Provided by covenant of this lease, Owners shall provide: (a) necessary
Owners elevator facilities on business days from 8 a.m. to 6 p.m. and
on Saturdays from 8 a.m. to 1 p.m. and have one elevator
subject to call at all other times; (b) heat to demised premises when and as
required by law, on business days from 8 a.m. to 6 p.m. and on Saturdays from 8
a.m. to 1 p.m.; (c) water for ordinary lavatory purposes, but if Tenant uses or
consumes water for other purposes or in unusual quantities (of which fact Owner
shall be the sole judge. Owner may install a water meter at Tenant's expense
which Tenant shall thereafter maintain at Tenant's expense in good working order
and repair to register such water consumption and Tenant shall pay for water
consumed as shown on said water meter as additional rent as and when bills are
rendered; Said premises are to be kept clean by Tenant, it shall be done
at Tenant's sole expense, in a manner satisfactory to Owner and no one other
than persons approved by Owner shall be permitted to enter said premises or the
building of which they are a part for such purpose. Tenant shall pay Owner the
cost of removal of any Tenant refuse and rubbish from the building; (f) Owner
reserves the right to stop services of the heating, elevators, plumbing,
air-conditioning, power systems or cleaning or other services' if any, when
necessary by reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in the judgement of Owner for as long as may
be reasonably required by reason thereof. If building of which the demised
premises are a part supplies manually-operated elevator service, Owner at any
time may substitute automatic control elevator service and upon ten days'
written notice to Tenant, proceed with alterations necessary therefor without in
any wise affecting the lease or the obligation of Tenant hereunder. The same
shall be done with a minimum of inconvience to Tenant and Owner shall pursue
alteration with due diligence.
Captions: 30. The Captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the
scope of this lease nor the intent of any provision thereof.
Definitions: 31. The term "office" or "offices", wherever used in this
lease, shall not be construed to mean premises used as a store
or stores, for the sale or display, at any time, of goods, wares or merchandise,
of any kind, or as a restaurant, shop, booth, bootblack or other stand, barber
shop, or for other similiar purposes or for manufacturing. The term "Owner"
means a landlord or lessor, and as used in this lease means only the owner, or
the mortgagee in possession, for the time being of the land and building (or the
owner of a lease of the building or of the land and building) of which the
demised premises form a part, that in the event of any sale or sales of said
land and building or of said lease or in the event of a lease of said building,
or of the land building, the said Owner shall be and hereby is entirely freed
and released of all covenants and obligations of Owners hereunder, and it shall
be deemed and construed without further agreement between the parties or their
successors in interest, or between the parties and the purchasers, at any such
sale, or the said lessee of the building, or of the land and building, that the
purchaser or the lessee of the building has assumed and agreed to carry out any
and all covenants and obligations of Owner hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portions thereof as is covered by specific hours in Article 29
hereof). Sundays and all days observed by the State or Federal Government as
legal holidays and designated as holidays by the applicable building service
union employee service contract or by the applicable Operating Engineers
contract respect to HVAC service.
- --------------------------------------------------
[GRAPHIC OMITTED] Space to be filled in or deleted.
<PAGE>
Adjacent 32. If an excavation shall be made upon land adjacent to the
Excavation -- demised premises, or shall be authorized to be made, Tenant
Shoring shall afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises for the
purpose of doing such work as said person shall deem necessary to preserve the
wall or the building of which demised premises form a part from injury or damage
and to support the same by proper foundations without any claim for damages or
indemnity against Owner, or diminution or abatement of rent.
Rules and 33. Tenant and Tenant's servants, employees, agents, visitors,
Regulations and licensees shall observe faithfully, and comply strictly
with, the Rules and Regulations and such other and further
reasonable Rules and Regulations as Owner or Owner's agents may from time to
time adopt. Notice of any additional rules or regulations shall be given in such
manner as Owner may elect. In case Tenant disputes the reasonableness of any
additional Rule or Regulation hereafter made or adopted by Owner or Owner's
agents, the parties hereto agree to submit the question of the reasonableness of
such Rule or Regulation for decision to the New York office of the American
Arbitration Association, whose determination shall be final and conclusive upon
the parties hereto. The right to dispute the reasonableness of any additional
Rule or Regulation upon Tenant's part shall be deemed waived unless the same
shall be asserted by service of a notice, in writing upon Owner within ten (10)
days after the giving of notice thereof. Nothing in this lease contained shall
be construed to impose upon Owner any duty or obligation to enforce the Rules
and Regulations or terms, covenants or conditions in any other lease, as against
any other tenant and Owner shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
Security: 34. Tenant has deposited with Owner the sum of $42,106.67
[GRAPHIC OMITTED] carried over from prior lease as security for the faithful
performance and observance by Tenant of the terms, provisions
and conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further convenants that it will not assign or
encumber or attempt to assign or encumber the money deposited herein as security
and that neither Owner nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
Estoppel 35. Tenant, at any time, and from time to time, upon at least
Certificate 10 days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or
corporation specified by Owner, a statement certifying that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), stating the dates to which the rent and additional rent have
been paid, and stating whether or not there exists any default by Owner under
this Lease, and, if so, specifying each such default.
Successors 36. The covenants, conditions and agreements contained in this
and Assigns: lease shall bind and inure to the benefit of Owner and Tenant
and their respective heirs, distributees, executors,
administrators, successors, and except as otherwise provided in this lease,
their assigns.
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[GRAPHIC OMITTED] Space to be filled in or deleted.
- SEE ANNEXED RIDER MADE A PART HEREOF -
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
L.H. CHARNEY ASSOCIATES [CORPORATE
Witness for Owner: --------------------------------- SEAL]
/s/
- ---------------------------------- --------------------------------- [L.S.]
By: A Partner
Witness for Tenant: [CORPORATE
--------------------------------- SEAL]
/s/ Regina Fortunah CYGNE DESIGNS, INC.
- -------------------------
Secretary BY: /s/
--------------------------------- [L.S.]
President
ACKNOWLEDGMENTS
Federal ID# 04-2843286
CORPORATE OWNER CORPORATE TENANT
STATE OF NEW YORK, ss.: STATE OF NEW YORK, ss.:
County of
County of
On this day of , On this day of ,
19___ , before me personally came 19___ , before me personally came
to me known, who being by me duly to me known, who being by me duly
sworn, did depose and say that he sworn, did depose and say that he
resides in ; resides in ;
that he is the of that he is the of
the corporation described in and the corporation described in and
which executed the foregoing which executed the foregoing
instrument, as OWNER; that he knows instrument, as TENANT; that he knows
the seal of said corporation; that the seal of said corporation; that
the seal affixed to said instrument the seal affixed to said instrument
is such corporate seal; that it was is such corporate seal; that it was
so affixed by order of the Board of so affixed by order of the Board of
Directors of said corporation, and Directors of said corporation, and
that he signed his name thereto by that he signed his name thereto by
like order. like order.
--------------------------- ---------------------------
INDIVIDUAL OWNER INDIVIDUAL TENANT
STATE OF NEW YORK, ss.: STATE OF NEW YORK, ss.:
County of County of
On this day of , On this day of ,
19___ , before me personally came 19___ , before me personally came
to me known and known to me to be to me known and known to me to be
the individual described the individual described
in and who, as OWNER, executed the in and who, as TENANT, executed the
foregoing instrument and foregoing instrument and
acknowledged to me acknowledged to me
that he that he
executed the same. executed the same.
--------------------------- ---------------------------
The submission of this Lease to Tenant for examination or for signature shall
not be deemed to create or evidence a reservation or option or any other right
in Tenant with respect to the Demised Premises or any other space in the
Building and it is expressly understood that this lease shall not be effective
and neither party shall be bound thereunder until it is executed and delivered
by both parties.
<PAGE>
RIDER ATTACHED TO AND FORMING PART OF LEASE DATED AS OF MARCH 20, 2000, BY AND
BETWEEN L.H. CHARNEY ASSOCIATES, AS LANDLORD, AND CYGNE DESIGNS, INC., AS
TENANT, FOR UNIT 1002 AT 1410 BROADWAY, NEW YORK CITY, NEW YORK
================================================================================
37. RIDER PREVAILING
This Rider is hereby made part of the Lease above described to which
it is attached and in each instance in which the provisions, or any part
thereof, of this Rider shall contradict or be inconsistent with the provisions,
or any part thereof, of said Lease as constituted without this Rider, the
provisions of this Rider shall prevail and govern and the contradicted or
inconsistent provisions of said Lease shall be deemed amended accordingly.
38. TENANT LIENS
Supplementing the provisions of Article "3" hereof, the parties
agree that if any action, suit or proceeding be brought upon any lien caused by
Tenant, its agents, employees, representatives or contractors for the
enforcement or foreclosure of the same, Tenant covenants and agrees, at its own
cost and expense, to defend Landlord herein and to pay any damages and satisfy
and discharge any judgment entered therein.
39. PAYMENTS
Whenever in this Lease any sum, amount, item or charge shall be
designated or considered as additional rent, Landlord shall have the same rights
and remedies for the nonpayment thereof as Landlord would have for the
nonpayment of the fixed or minimum rent herein stipulated and provided for to be
paid by Tenant. In the event that any payment to be made by Tenant hereunder
shall become overdue for a period in excess of five (5) days, a "late charge"
equal to 6% (six percent) of the overdue payment may be charged by Landlord and
shall be payable by Tenant as additional rent on the first day of the month
following Landlord's demand therefor. The phrase "rent" as used in this Lease
shall mean the fixed or minimum rent reserved hereunder together with the other
charges hereunder which are identified as, or deemed to be, additional rent.
Delay on the part of Landlord to bill Tenant for any rent or additional rent
under this Lease shall not be considered a waiver thereof.
CONDITIONED AIR
40. a) Tenant may provide cooled air to the Demised Premises, through
the air conditioning unit(s) or system presently installed, if any, or which
Tenant may
<PAGE>
install, which shall be air-cooled only. Any air conditioning unit(s) or system
installed in the Demised Premises, is and shall be, deemed property of Landlord.
b) If the present air conditioning system in the Demised
Premises uses water, then: Tenant shall pay for the water consumed and the
sewage charge in the operation thereof in accordance with the readings of a
water meter installed to measure such consumption. Prior to installing any new
or additional mechanical air conditioning unit or units in the Demised Premises,
Tenant shall first obtain Landlord's written consent. Under penalty of damages
and forfeiture, Tenant herein shall not install any mechanical air conditioning
plant or individual or collective unit using water unless the unit or units are
equipped with a water conserving device, such as evaporative condenser,
economizer, water cooling tower, or other similar apparatus. In connection with
such air conditioning, Tenant agrees to install at its own cost and expense, a
water meter which shall meter all make-up used in such air conditioning plant
and such water used and sewage charges shall be paid for by Tenant per said
meter readings, at the prevailing rate charged by the City of New York, on a
timely, current basis. If Tenant has not installed a water meter, Landlord will
charge Tenant with its proportion of the water consumption and sewage charges
incurred by the Building.
Tenant shall change the filters of the air conditioning
unit(s) no less than once every three (3) months, and shall have the unit(s)
chemically cleaned at least once a year (records of same shall be maintained by
Tenant; which records Landlord may inspect upon reasonable notice)
c) Tenant shall be responsible for the maintenance of the
air conditioning unit(s) or system affecting the Demised Premises. Tenant shall,
during the term of this Lease, keep in full force and effect a repair
maintenance agreement (including replacement of all parts) with a company
approved by Landlord, covering said air conditioning unit(s) or system; a
current copy of which (including renewals thereof) shall be delivered to
Landlord.
d) Landlord shall have free and unrestricted access to all
air conditioning equipment. Landlord reserves the right to interrupt, curtail,
stop or suspend air conditioning when necessary because of accident, repairs,
alterations or improvements, which in the judgment of Landlord are desirable or
necessary, or to comply with governmental restrictions in the use of materials
or in the use of the air conditioning system or because of difficulty or
inability to secure supplies or labor because of strikes or other cause or
causes beyond the reasonable control of Landlord, whether such cause or causes
are similar or
2
<PAGE>
dissimilar to those hereinbefore mentioned and no diminution or abatement of
rent or other compensation shall or will be claimed by Tenant nor affected or
reduced by reason of the interruptions, curtailment, stoppage or suspension of
air conditioning, provided that if resumption is, or becomes, within Landlord's
reasonable control, Landlord shall use all diligent and reasonable efforts to
cause such resumption.
REAL ESTATE TAX ESCALATION
41. a) For the purpose of this Article "41", the parties have
agreed that:
i) The term "Real Property" shall mean collectively the
land described in Exhibit "A" and the Building erected thereon.
ii) The term "Taxes" shall mean the total amount of real
estate taxes levied, assessed or imposed against the Real Property, on an annual
basis, by the taxing authorities of the State or City of New York pursuant to an
assessed valuation appearing on the annual record of assessed valuation of real
estate for the Borough of Manhattan (or if due to a future change in the method
of taxation, any franchise, income, profit or other tax, however designated,
substituted in full or in part for or in lieu of such real estate taxes)
provided, however, that if any exemption or abatement is granted to Landlord by
virtue of any improvements to the Building pursuant to Section J51-2.5 of the
Administration Code or any amendments thereto, or any other municipal, State or
Federal statute, law, ordinance, rule or regulation, such Taxes shall be
computed for the purposes of this Article as if no such exemption or abatement
had been granted.
iii) The term "Tax Year" shall mean such period of
twelve (12) consecutive months commencing on July 1st of each such period in
which occurs any part of the term of this Lease, or such other period as may
hereafter be duly adopted as the fiscal year for real estate tax purposes by the
City of New York. As used herein and in Article 41(a) and 41(b), the phrase
"term of this Lease" shall mean the original term provided for in this Lease and
any renewal or extension thereof, irrespective of the sooner termination thereof
by reason of Tenant's default.
iv) The term "Base Tax Year" shall mean the Tax Year
commencing July 1, 2000 and ending June 30, 2001.
v) The term "Base Taxes" shall mean the sum obtained by
multiplying the assessed valuation of the Real Property for the Base Tax Year by
the tax rate in effect during the Base Tax Year.
3
<PAGE>
b) If Taxes for any Tax Year shall be increased above the
Base Taxes then Tenant shall pay to Landlord as additional rent 1.9% of such
increase. The amount due hereunder shall be paid by Tenant in installments
equivalent to when the taxes are due to the State or City of New York, within
ten (10) days after Landlord shall submit a statement to Tenant, showing in
reasonable detail, the computation of the amount, if any, due hereunder to
Landlord. Any such tax increase for the Tax Year in which the Lease shall end
shall be apportioned.
c) A tax bill for any relevant Tax Year (including the
Base Tax Year) shall be conclusive evidence of the amount of taxes imposed for
such year unless the assessment for such year be protested and, in such latter
event, all computations and payments hereunder, pending final determination of
the proceedings, shall be based upon such original tax bill, with retroactive
adjustment to be made following such final determination.
d) If Landlord shall obtain a reduction in assessed valuation in
respect to any Tax Year pursuant to this numbered Article, the amount of Taxes
for such Tax Year, plus the amounts of any reasonable expenses incurred by
Landlord in obtaining such reduction, shall be deemed to be the taxes finally
determined to be payable by Landlord for such Tax Year.
e) Tenant shall pay to Landlord, as additional rent 1.9% of any
real estate tax not based upon an assessment (e.g., business improvement
district taxes or "safe neighborhood taxes") within five (5) days of any bill
from Landlord or its managing agent.
COST-OF-LIVING ESCALATION
42. The fixed annual rent payable by Tenant shall be augmented in
accordance with this Article.
a) Definition. For the purpose of this Article, the
following definition shall apply:
The term "Base Year" shall mean the fiscal year commencing May
1, 2000 and terminating April 30, 2001.
b) Cost of Living Adjustments. The adjustment described in
this subdivision (b) shall be based upon the "Consumer Price Index" published by
the Bureau of Labor Statistics of the U.S. Department of Labor for all Urban
Consumers, New York, New York-Northeastern New Jersey, for the base year, i.e.,
the average of the monthly All Items Price Indices for the twelve (12) months of
the base year (the "Base Price Index"), and upon the average of the monthly
4
<PAGE>
All Items Price Indices for each and every twelve (12) month period ("Annual
Adjustment Period"), and portions thereof as set forth below, succeeding the
base year. In the event the Price Index for any Annual Adjustment Period shall
reflect an increase in the cost of living over and above the cost of living as
reflected by the Base Price Index, then the current fixed annual rent reserved
in this Lease shall be augmented by an additional rent adjustment, based on the
percentage difference between the Base Price Index and the Price Index for such
Annual Adjustment Period, which shall be computed and payable as follows:
i) The cost of living adjustment for each and every Annual
Adjustment Period during the term of this Lease shall be payable in four (4)
quarterly installments, which shall be due and payable as of the first day of
the month immediately following the third (3rd) month (the "First Installment"),
sixth (6th) month (the "Second Installment"), ninth (9th) month (the "Third
Installment"), and twelfth (12th) month (the "Fourth Installment") of such
Annual Adjustment Period. If these are not calendar quarters, then Landlord may,
at its option, issue a pro rata escalation and then bill Tenant on a calendar
quarterly basis, returning to a pro rata billing if necessary at the end of the
Lease term.
(ii) On or after the due date of each such installment,
Landlord shall furnish to Tenant a bill for the current installment of cost of
living rent adjustment, and amounts billed thereby shall be immediately due and
payable as additional rent. Said bill shall contain a statement of the Base
Price Index, a statement of the monthly average of the All Items Price Indexes
for all months of such Annual Adjustment Period preceding such installment date
(the "Installment Index"), and a statement of the total amount of base rent, if
any, (the "Base Rent"), theretofore paid or payable to Landlord pursuant to
this Lease attributable to said Annual Adjustment Period.
(iii) For each such installment, there shall be computed a
"Percentage Adjustment Fraction", which shall be a fraction whose denominator is
the base Price Index and whose numerator is the Installment Index less the Base
Price Index. The fraction thus determined shall be multiplied by the Base Rent
theretofore paid or payable by Tenant attributable to such Annual Adjustment
Period, and from this sum shall be subtracted any amounts theretofore paid or
payable by Tenant, pursuant to this sub-section, attributable to said Annual
Adjustment Period. The resultant sum shall constitute the quarterly installment
of cost of living adjustment which shall be immediately due and payable as
additional rent.
The following illustrates the intention of the parties hereto
as to the computation of each quarterly
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installment of the aforementioned cost of living additional rent adjustment:
Assume the Tenant paid an annual Base Rent of $4,000 in equal
monthly installments during the given Annual Adjustment Period, that the Base
Price Index was 103, the First Installment Index was 104.3, the Second
Installment Index was 104.85, the Third Installment Index was 105.42, and the
Final Installment Index was 105.96. In such event, the amount of the First
Installment would be (104.3 - 103)/103, or .0126, multiplied by $1,000 for a
total amount payable of $12.60. The amount of the Second Installment would be
(104.85 - 103)/103, or .0180, multiplied by $2,000, equaling $36.00, less
$12.60, for a total amount payable of $23.40. The amount of the Third
Installment would be (105.42 -103)/103, or .0235, multiplied by $3,000, equaling
$70.50. less $36.00, for a total amount payable of $34.50. The amount of the
Final Installment would be (105.96 - 103)/103, or .0287, multiplied by $4,000,
equaling $114.80, less $70.50, for a total amount payable of $44.30.
It is understood and agreed that the above figures are employed
solely for the purposes of illustration, and Landlord, makes no representations
or projections by the use thereof.
In the event that the Price Index ceases to use the 1982-84 average
of 100 as the basis of calculation, or if a substantial change is made in the
terms or number of items contained in the Price Index, then the Price Index
shall be adjusted to the figure that would have been arrived at had the manner
of computing the Price Index in effect at the date of this Lease not been
altered. In the event such Price Index (or successor of substitute index) is not
available, a reliable governmental or other nonpartisan publication evaluating
the information theretofore used in determining the Price Index shall be used.
Landlord, at its option, may place this escalation on a calendar
quarter or calendar year basis. It may make a prorata adjustment to accomplish
same, and Tenant shall be shown such adjustment.
c) The statements of the cost of living adjustments to be
furnished by Landlord as provided in subdivision (b), above, shall consist of
or reference the data used by Landlord. The statements thus furnished to Tenant
shall constitute a final determination to Tenant of the cost of living
adjustment for the period represented thereby.
d) In no event shall the Base Rent under this Lease
(exclusive of the additional rents under this Article) be reduced.
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e) Upon the date of any expiration or termination of this
Lease, whether the same be the date hereinabove set forth as the expiration of
the term (hereinafter called "lease expiration date") or any prior or subsequent
date, a proportionate share of the additional rent not theretofore billed under
this Article for the calendar year during which such expiration or termination
occurs shall immediately become due and payable by Tenant to Landlord. Promptly
after said expiration or termination, Landlord shall compute the additional rent
due from Tenant, as aforesaid, which computations shall be based upon the most
recent statements theretofore prepared by Landlord and furnished to Tenant under
subdivision (b), above, and the most recent available All Items Price Indices.
f) Notwithstanding any expiration or termination of this
Lease prior to the Lease expiration date (except in the case of a cancellation
by mutual agreement) Tenant's obligations to pay any and all additional rent
under this Lease shall continue and shall cover all periods up to the Lease
expiration date. Tenant's obligations to pay any and all additional rent under
this Lease and Landlord's and Tenant's obligation to make the adjustment
referred to in subdivision (e), above, shall survive any expiration or
termination of this Lease.
ELECTRICITY
43. a) The Demised Premises shall be metered. If no meter is
presently installed, same shall be installed at Tenant's expense. Tenant shall
pay electric charges in accordance with subparagraph g), below.
b) In order to insure that the existing capacity of any of
the electrical conductors and equipment in or otherwise serving the Demised
Premises is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior written
consent in each instance, connect any additional fixtures, appliances or
equipment (other than lamps, typewriters and similar small office machines as
referred to in Article 49, below) to the Building electric distribution system
or make any alterations or addition to the electric system of the Demised
Premises existing as of and at the commencement of the term of this Lease or as
otherwise set forth in Tenant's installation plans approved in writing by
Landlord.
c) Landlord shall not be liable in any way to Tenant for
any failure or defect in the supply or character of electric current furnished
to the Demised Premises other than such as may result from Landlord's negligent
or otherwise wrongful act or omission.
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d) Landlord shall not, in any way, be liable or responsible
to Tenant for any loss or damage or expense which Tenant may sustain or incur,
if, during the term of this Lease, either the quantity or character of
electrical energy is changed or is no longer available or suitable for Tenant's
requirements.
e) Should Landlord's consent provided for in sub-paragraph
(b) hereof be given, any riser or risers required to supply Tenant's electrical
requirements (in addition to those presently installed in the Building) will,
upon request of Tenant, be furnished and installed by Landlord, at the sole cost
and expense of Tenant, if, in Landlord's sole judgment, the same are necessary
and will not cause permanent damage or injury to the Building or the Demised
Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. In addition to the installation of such
riser or risers, Landlord will also, at the sole cost and expense of Tenant,
furnish and install all other equipment proper and necessary in connection
therewith, subject to the terms and conditions contained in this Article "43".
Tenant covenants and agrees that, at all times, its uses of electrical energy
shall never exceed the capacity of existing feeders to the Building or the
risers or wiring installations. It is further covenanted and agreed by Tenant
that all costs and expenses that may be incurred by Landlord, which are
chargeable to Tenant pursuant to the provisions of this Article "43", are
collectible as additional rent and shall be paid by Tenant to Landlord within
five (5) days after rendition of any bill or statement to Tenant therefor.
f) Tenant, at Tenant's expense, shall purchase and install
all lamps, bulbs, tubes, ballasts and starters used in the Demised Premises.
g) Landlord elects to supply electric current to the
Demised Premises. Tenant agrees that electric current will be supplied by
Landlord and Tenant will pay Landlord or Landlord's designated agent, as
additional rent for the supplying of electric current, an amount or amounts set
by the Landlord computed at peak rates not less than those in the Service
Classification No. 4 of the Consolidated Edison Company of New York, Inc., in
effect during the term of this Lease plus fifteen (15%) percent. Landlord at its
option may, however, increase the additional rent charged for supplying
electricity for the Demised Premises based upon changes, occurring subsequent to
the aforementioned date, in the method, rates or manner by which Landlord
thereafter purchases electricity for the Building of which the Demised Premises
are part. Such increases in the additional rent charged for electricity shall be
determined by a comparison to the nearest full percentage of the average cost
per
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kilowatt hour to Landlord at the rate in effect at which Landlord purchased
electricity prior to such change and the rate under which Landlord will purchase
electricity after such change. The periods to be used for the aforesaid
computation shall be the bill periods ended in February and August immediately
preceding such change. Average cost per kilowatt hour is defined as including
energy charges, demand charges, fuel adjustment charges, rate adjustment
charges, sales taxes where applicable, and/or any other factors used by the
public utility in computing its charges to Landlord, applied to the kilowatt
hours purchased by Landlord during a given bill period. Where more than one
meter measures the service of Tenant, the service rendered through each meter
may be computed and billed separately in accordance with the rates herein. Bills
therefor shall be rendered at such times as Landlord may elect and the amount
shall be deemed to be, and be paid as, additional rent. In the event that such
bills are not paid within five (5) days after the same are rendered, Landlord
may, without further notice, discontinue the service of electric current to the
Demised Premises without releasing Tenant from any liability under this Lease
and without Landlord or Landlord's agent incurring any liability for any damage
or loss sustained by Tenant by such discontinuance of service. In the event that
in Landlord's sole judgment Tenant's electrical requirements necessitate the
installation of an additional riser, risers or other proper and necessary
equipment in connection with Tenant's electrical requirements, the same shall be
installed by Landlord at the Tenant's sole expense. Rigid conduit only will be
allowed. Tenant agrees that at all times its use of electric current shall never
exceed the capacity of existing feeders to the Building of the risers or wiring
installations. It is further agreed by Tenant that all of the aforesaid costs
and expenses are chargeable and collectible as additional rent and shall be paid
by Tenant to Landlord within five (5) days after rendition of any bill or
statement to Tenant thereof. Landlord may discontinue any of the aforesaid
services upon thirty (30) days notice to Tenant without being liable to Tenant
therefor or without in any way affecting this Lease or the liability of Tenant
hereunder or causing a diminution of rent and the same shall not be deemed to be
a lessening or diminution of services within the meaning of any law, rule or
regulation now or hereafter enacted, promulgated or issued. In the event
Landlord gives such notice of discontinuance, Landlord shall permit Tenant to
receive such service direct from the public utility corporation upon condition
that Tenant shall at its sole expense entirely segregate Tenant's electrical
system so that the same is in no way dependent upon or connected to the circuits
or distribution facilities of Landlord or any other Tenant and that upon
vacating the Demised Premises, Tenant will restore at its sole expense same to
the condition existing prior to such segregation. Tenant shall make no
electrical installations, alterations, additions or changes
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to electrical equipment or appliances without the prior written consent of
Landlord in each instance, which consent will not be unreasonably withheld.
Tenant will comply with the General Rules, Regulations, Terms and Conditions
applicable to Service, Equipment, Wiring and Changes in Requirements in
accordance with the requirements of the public utility supplying electricity to
the Building in the same manner as if Tenant was serviced directly by such
utility. If any tax is imposed upon Landlord's receipt from the sale or resale
of electrical energy or gas or telephone service to Tenant by any Federal, State
or Municipal Authority, Tenant agrees that, where permitted by law, Tenant's pro
rata share of such taxes shall be passed on to, and included in the bill of, and
paid by Tenant to Landlord, and deemed to be additional rent hereunder.
ASSIGNMENT; SUBLETTING
44. a) Except as herein otherwise provided, Tenant will not, by
operation of law or otherwise, assign, mortgage or encumber this Lease, nor
sublet or permit the Demised Premises or any part thereof to be used by others,
without Landlord's prior written consent in each instance. The consent by
Landlord to any assignment or subletting shall not in any manner be construed to
relieve Tenant from obtaining Landlord's express written consent to any other or
further assignment or subletting.
b) Tenant may, without Landlord's prior written consent,
assign this Lease to a corporation or other business entity (herein sometimes
called a "successor corporation") into or with which Tenant shall be merged, or
consolidated, or to which all or substantially all of Tenant's stock or assets
may be transferred, provided that the successor corporation shall use the
Demised Premises only for the purposes specified in Article 2 of this Lease,
provided the successor corporation has and maintains a net worth no less than
Tenant's net worth during the year preceding any such transaction and provided
further that there is delivered to Landlord within five (5) business days (which
time is of the essence) after the effective date of such assignment, an
instrument, duly executed and acknowledged by the assignee whereby assignee
assumes performance of Tenant's obligations under this Lease, as well as a true
copy of the instrument of merger or consolidation if the transaction wherein the
assignment is made be one of merger or consolidation. If Tenant requests
Landlord's consent to any other assignment of this Lease or subletting of all or
any portion of the Demised Premises, it shall submit in writing to Landlord, at
the time it requests such consent:
i) the name and address of the proposed assignee or
subtenant;
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ii) the terms and conditions of the proposed assignment
or subletting, and a true, complete and accurate copy of any proposed agreement
between Tenant and a prospective subtenant or assignee;
iii) the nature and character of the business of the
proposed assignee or subtenant; and
iv) banking, financial and other credit information
relating to the proposed assignee or subtenant, reasonably sufficient to enable
Landlord to determine the proposed assignee's or subtenant's financial
responsibility.
c) Landlord shall have the following options to be
exercised by written notice to Tenant within thirty (30) business days after
Tenant's aforesaid request for Landlord's consent, which request shall be deemed
sufficient upon which Landlord must act only if the four (4) conditions in
subparagraphs (b) above, have been complied with to Landlord's reasonable
satisfaction:
i) if the request be for Landlord's consent to an
assignment, Landlord may require Tenant to execute an assignment to Landlord, or
to anyone designated by Landlord without payment or any premium therefor,
provided that concurrently with the delivery of such assignment Landlord, for
itself, and for any successor in interest as Landlord, will execute and deliver
an instrument releasing and discharging the Tenant from all obligations under
this Lease accruing after the effective date of such assignment, but if said
assignment be a pro tanto assignment, then such release and discharge shall
relate to only so much of the Demised Premises as is covered by such assignment;
ii) if the request for Landlord's consent be to a
sublease, Landlord may require Tenant to execute a sublease or assignment to
Landlord or its designee for the same term as the proposed sublease and upon the
same terms and conditions as are contained in the proposed sublease except that
Landlord or its designee shall not be required to pay any monies under said
sublease or assignment other than reserved rent and additional rent at the same
annual rate payable by Tenant under this Lease, but prorated and apportioned
according to the number of square feet of rentable area contained in the sublet
premises, and except further, that Landlord or its designee shall not be
required to pay any premium therefor or perform any work thereunder as subtenant
(for the purpose of readying the premises for use), and except further, that the
sublease shall provide for the unqualified right on the part of the subtenant to
further sublease to others and to alter the sublet premises in any manner
Landlord or its designee shall desire. Concurrently,
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with the delivery of the sublease to Landlord, Landlord, for itself and for any
successor in interest as Landlord, will execute and deliver an instrument
indemnifying and holding Tenant harmless from any loss of rent or from damages
which Tenant might sustain by reason of the default of the sublessee under the
sublease.
d) If Landlord shall not exercise any of its aforesaid
options within the time limited therefor, and if the nature and character of the
business and the financial responsibility of the proposed assignee or subtenant
be reasonably acceptable to Landlord, its consent to the proposed assignment or
subletting shall not be unreasonably withheld or delayed, provided however, that
each of the following conditions are first complied with:
i) Tenant shall be current with all rent and additional
rent due and owing under its Lease agreement and Tenant shall not then be in
default under this Lease;
ii) if the proposed assignment or subletting be of the
entire Demised Premises, the assignee or sublessee assumes performance of
Tenant's obligations under this Lease and shall become jointly and severally
liable with the Tenant for the performance thereof. If the proposed subletting
be of less than the entire Demised Premises, no more than two (2) subleases
shall then be in effect in the Demised Premises;
iii) that a duplicate, executed original of the
instrument of assignment or sublease, as the case may be, and of the assumption
agreement duly executed by the appropriate party, shall be delivered to Landlord
before the assignee or sublessee shall be let into possession of the Demised
Premises or the sublet portion thereof;
iv) Tenant shall pay any reasonable expense, including,
but not limited to, reasonable attorney's fees incurred in connection with the
review and/or preparation and/or execution of any documents submitted to
Landlord relating to the proposed assignment or subletting.
e) If Landlord's written consent to a subletting or
assignment shall have been obtained, Tenant shall pay to Landlord, as additional
rent hereunder, due on the 1st day of each month of the term of the sublease, or
assignment, an amount equal to 100% of the annual sublet or assignment rent in
excess of the annual rent payable hereunder, except that if the sublet or
assignment be for less than all of the Demised Premises, appropriate pro rata
adjustment shall be made in determining the excess of sublet or assignment
rental over the prorated rental payable under this Lease. "Rent" or "Rental" as
used herein shall mean the
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aggregate of reserved or fixed rent and any additional rent payable under the
within Lease.
f) Each of the foregoing provisions and conditions shall
apply to each and every further assignment or subletting. An assignment of lease
or a subletting as above provided, shall not discharge or release from liability
hereunder Tenant or any other person, firm or corporation which shall have
previously assumed Tenant's obligations hereunder, such liability to remain and
continue for the balance of the term with the same force and effect as though no
assignment had been affected.
g) Anything hereinbefore contained to the contrary
notwithstanding, Landlord shall not be required to consent to underletting to
any person or entity, who or which at the time of such proposed underletting is
a Tenant or undertenant or occupant of any part of the Building of which the
Demised Premises are a part, or of any Building which the Landlord may then own.
h) Anything hereinbefore contained to the contrary
notwithstanding, Landlord shall not be required to consent to any underletting
of part or all of the Demised Premises until Tenant shall have been in occupancy
thereof and in compliance with the terms and conditions of this Lease on
Tenant's part to be performed for no less than one (1) year from the date of the
commencement of the term hereof.
i) Anything hereinbefore contained to the contrary
notwithstanding, Landlord shall not be required to consent to underletting or
occupancy of the Demised Premises by legal representatives of Tenant or by any
person or entity to whom or which Tenant's interest under this Lease passes by
operation of law; nor shall Landlord be required to consent to underletting to
any person or entity who or which proposes to use the Demised Premises for
purposes other than such as are hereinbefore provided or which are not in
keeping with the general nature of occupancies for business purposes generally
provided in the Building of which the Demised Premises are a part.
j) Tenant covenants, undertakes and agrees that it will not
advertise or list the Demised Premises or any part thereof for underletting at a
lower rental rate than that herein provided to be paid by Tenant to Landlord.
Tenant shall not enter into any takeover agreement effecting the Demised
Premises.
k) Tenant herein designates Landlord's Managing Agent as
Tenant's exclusive agent to effect underletting proposed to be made pursuant to
the provisions in this Article, and Tenant agrees to pay to such Managing
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Agent commissions computed in accordance with the rates prescribed by L.H.
Charney Associates, Inc. then in effect.
l) The transfer in the aggregate of more than fifty (50%)
percent of the voting stock of any corporate Tenant or more than a fifty (50%)
percent interest in any partnership Tenant or other entity holding Tenant's
interest in this Lease, shall be deemed an assignment within the meaning of
Article 11 of this Lease and of this numbered Article, and shall require
Landlord's prior written consent, which consent shall not be unreasonably
withheld upon compliance with all of the conditions set forth in subdivisions
(a), (b), (c) and (d) hereof. The provisions hereof shall not apply to the
transactions described in the first sentence of (b) hereof; nor to a transfer of
any of Tenant's Stock on any recognized public securities exchange.
m) The provisions of this Article shall apply only to an
assignment of this Lease by Tenant and to a subletting of all or any portion of
the Demised Premises by Tenant and shall not apply to any other transaction
whereby a third party, other than Tenant or Tenant's assignee or Tenant's lessee
(if the transaction be one of sublease), is permitted to occupy all or any
portion of the Demised Premises.
LANDLORD'S LIABILITY
45. Tenant agrees that, notwithstanding any contrary provision of
this Lease, Tenant will look solely to the interest of Landlord or its successor
in the land and the Building for the satisfaction of any judgment or other
judicial process requiring the payment of money as a result of any negligence or
breach of this Lease by Landlord or such successor, and no other property or
other assets of Landlord or any partner, member, officer, or director thereof,
disclosed or undisclosed, or such successor will be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to this Lease, the relationship of Landlord and Tenant hereunder
or Tenant's use and occupancy of the Demised Premises.
If Landlord is an individual (which as used herein includes
aggregates of individuals such as joint ventures, general or limited
partnerships or associations), such individual shall be under no personal
liability with respect to any of the provisions of this Lease, and if such
Landlord is in breach or in default with respect to its obligations or otherwise
under this Lease, Tenant shall look solely to the interest of such Landlord in
the property, of which the Demised Premises form a part, for the satisfaction of
Tenant's remedies.
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BROKER(S)
46. Tenant warrants and represents that it negotiated the within
Lease through L.H. Charney Associates, Inc., as broker, only and without the
aid, intervention or employment of any other broker. Tenant agrees to indemnify
Landlord against any claim by any other broker dealt with by Tenant or Landlord
with regard to this Lease and defend at its own cost and expense, any claim
brought by any other broker for commission resulting from this Lease.
NOTICES
47. Any notice or demand which, under the terms of this Lease or
under any statute must or may be given or made by the parties hereto, shall be
in writing, and shall be given or made by personal delivery or by mailing the
same by registered mail or certified mail, return receipt requested, addressed
to Landlord at the address hereinabove mentioned, with a copy to Law Office of
Leon H. Charney, 1441 Broadway, New York, NY 10018, Attn: Robert A. Rubenfeld,
Counsel, or to Tenant at the Building. Either party, however, may designate in
writing such new or other address to which such notice or demand shall
thereafter be so given, made or mailed. Any mailed notice given hereunder shall
be deemed delivered when deposited in a United States general branch post
office, maintained by the United States Government in the City of New York,
enclosed in a registered or certified, prepaid wrapper addressed as hereinbefore
provided.
ESTOPPEL CERTIFICATES
48. Tenant shall, from time to time, upon request by Landlord,
promptly, within five (5) days of receipt of such request, execute and
acknowledge a written instrument in form satisfactory to Landlord certifying to
any mortgagee or purchaser, or proposed mortgagee or proposed purchaser, or any
other person specified by Landlord, as to the validity and force and effect of
this Lease as then constituted, as to the existence of any default on the part
of any party hereunder, as to the dates to which and the amounts in which the
annual rent, additional rent and other charges herein have been paid in advance,
as to the existence of any counterclaims, offsets or defenses hereunder on
Tenant's part and as to any other matters requested by Landlord, including the
commencement and expiration dates of this Lease, as well as current rent and
additional rent being remitted to Landlord. Exhibit "B" annexed hereto is one
form of estoppel agreement Tenant agrees to fill in, execute and deliver to
Landlord pursuant to this Article.
EQUIPMENT
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49. Subject always to the provisions of this Lease, Tenant may, at
its own cost and expense, install, operate and maintain customary small office
machines, including typewriters, tabulation, statistical and office copy devices
and computers--other than mainframe computers, provided, however, that the use
and maintenance of such machines will not in any way interfere with or affect
the use of the Building by other tenants, and provided further that Landlord
may, if it so determines, install, at the cost and expense of Tenant, flooring
or ceiling reinforcements and sound absorbent material as may be necessary in
the area where such machines may from time to time be located, and Tenant agrees
to pay the cost thereof within five (5) days after presentation of bills
covering the same, the amount of which costs shall be deemed to be owing by
Tenant as additional rent.
CONTRACTORS
50. Tenant shall not at any time prior to or during the term of this
Lease, either directly or indirectly, use any contractors and/or labor and/or
materials whose use would create or creates any difficulty with other
contractors and/or labor engaged by Tenant or Landlord or others in the
maintenance and/or operation of the Demised Premises or the Building.
Tenant shall use only Landlord's contractor or such other
contractor approved in writing in advance by Landlord for (i) any Local Law
work; (ii) any air conditioning hook-ups or connections; (iii) any work
impacting on any Building-wide systems.
TENANT'S OBLIGATIONS UPON
EXPIRATION OR EARLIER TERMINATION
51. a) All alterations, additions and improvements made by
Tenant at its own cost and expense, other than those which cannot be removed
without causing substantial damage to the Demised Premises or the Building
containing the same, and all furniture, removable partitions and trade fixtures
installed by Tenant at its own cost and expense, shall remain the property of
Tenant and on or before the expiration of the term shall be removed from the
Demised Premises by Tenant and Tenant, at its own cost and expense, shall repair
all damage to the Demised Premises caused by such installation or removal and
shall restore the Premises to good order and condition on or before the
expiration of the term of this Lease. The provision regarding repairs by Tenant
shall survive the termination of this Lease.
b) On the expiration date or upon the sooner termination of
this Lease or upon any re-entry by Landlord, Tenant shall, at its expense, quit,
surrender,
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vacate and deliver the Premises to Landlord "broom clean" and in good order,
condition and repair, ordinary wear, tear and damage by fire or other insured
casualty excepted, together with all Improvements therein. Tenant shall, at its
expense, remove from the Demised Premises all of Tenant's unaffixed property and
any personal property of persons claiming through or under Tenant, and shall
repair or pay the cost of repairing all damage to the Demised Premises and the
Building occasioned by such removal. Any of Tenant's property or other personal
property which shall remain in the Demised Premises after the termination of
this Lease shall be deemed to have been abandoned, and either may be retained by
Landlord as its property or may be disposed of as Landlord may see fit. If such
property not so removed shall be sold, Landlord may receive and retain the
proceeds of such sale, moving and storage, arrears of rent and any damages to
which Landlord may be entitled. Any expense incurred by Landlord in removing or
disposing of such property shall be reimbursed to Landlord by Tenant on demand.
c) If the expiration date or the date of sooner termination
of this Lease shall fall on a day which is not a business day, then tenant's
obligations under subparagraph (b) shall be performed on or prior to the
immediately preceding business day.
d) If the Demised Premises shall not be surrendered upon
the expiration date or sooner termination of this Lease, Tenant hereby
indemnifies Landlord against liability resulting from delay by Tenant in so
surrendering the Premises, including any claims made by any succeeding tenant or
prospective tenant founded upon such delay.
e) If Tenant shall remain in possession of the Demised
Premises after the termination of this Lease without the execution of a new
lease by Tenant and Landlord, Tenant, at the sole option of Landlord, subject to
all of the other terms of this Lease, insofar as the same are applicable to a
month-to-month tenancy, shall be deemed to be occupying the Premises as a tenant
from month to month, at a monthly rental equal to two (2) times the last fixed
rental plus all additional rental (including escalations) as in this Lease
provided. Nothing contained in this Article shall (i) imply any right of Tenant
to remain in the Demised Premises after the termination of this Lease without
the execution by Landlord of a new lease, (ii) imply any obligation of Landlord
to grant a new lease, or (iii) be construed to limit any remedy that Landlord
may have against Tenant as a holdover tenant.
f) Tenant's obligations under this Article shall survive
the termination of this Lease.
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USE RESTRICTIONS
52. a) Tenant covenants and agrees that it will not use or
occupy the Demised Premises or any part thereof as a bank, trust company,
savings bank and loan association, safe deposit company or personal loan
company, or for the issuance and sale of travelers' checks, foreign or domestic
money orders or for the receipt of money for transmission, or for any purpose
not set forth in Article "2" above;
b) It is understood and agreed that the Demised Premises
are to be occupied only as hereinbefore provided, and Tenant expressly covenants
and agrees not to manufacture or permit any manufacturing of any kind, character
or nature to be carried on in the Demised Premises or any part thereof; nor
shall it permit retail sales from the Demised Premises; nor shall it permit any
food concession to operate our of or in or about the Demised Premises; nor shall
it use or store or permit the usage or storage of any toxic or flammable
substances at any time; and these covenants on the part of Tenant are an express
inducement to Landlord to enter into this Lease.
ACCEPTANCE OF DEMISED PREMISES
53. Tenant has thoroughly examined the herein Demised Premises and
is fully familiar with the condition thereof. Tenant agrees to accept the said
Premises "as is" and in such condition as the same may be at the date of
commencement of the term of this Lease, and Landlord shall not be obligated or
required to do any work or to make any alterations or install any fixtures,
equipment or improvements, or make any repairs or replacements to or on the
Demised Premises in order to fit the same for Tenant's use.
CLEANING
54. a) Tenant shall be solely liable and responsible for
cleaning the Demised Premises. In order to further effectuate a tight security
program, Tenant covenants and agrees to use only the contractors designated by
Landlord to provide cleaning services in the Building of which the Demised
Premises form a part or contractor or contractors approved in advance for any
waxing, polishing and other maintenance work of the Demised Premises and of
Tenant's personal property therein, provided that the prices charged by such
contractor(s) are comparable to the prices charged by other reputable
contractors for the same work. Tenant covenants and agrees that it shall not
employ any individual, firm or organization for such purposes without Landlord's
prior written consent. If Landlord and Tenant cannot agree on whether the prices
being charged by the contractor
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designated by Landlord are comparable to those charged by other reputable
contractors, Landlord and Tenant shall each obtain two (2) bona fide bids for
such work from reputable contractors in New York City and the average of the
four (4) bids obtained shall be the standard of comparison. The foregoing shall
not preclude Tenant or its employees from performing any of the foregoing.
b) Tenant shall, at its expense, remove or cause to be
removed from the Demised Premises and the Building, all of its refuse and
rubbish. Should Tenant fail to pay the cost of such removal, Landlord may pay
such cost and charge the same to Tenant, the amount thereof to be paid as
additional rent on the first day of the month following Landlord's billing
thereof to Tenant. Such removal of the refuse and rubbish shall be subject to
such rules and regulations, as in the judgment of Landlord, are necessary for
the proper operation of the Building.
c) Tenant shall not hire, rent, do or permit to be done any
window cleaning in, on or about the Premises, except from such recognized agency
or source as shall be approved in writing, in advance, by Landlord. If Landlord
shall have granted an exclusive permit to any particular person, firm or
corporation supplying such window cleaning service, then and in that event
Tenant agrees to obtain such service from such designated source.
d) Tenant shall be liable for any tax imposed by any
governmental authority with respect to cleaning services in the Demised
Premises. Landlord shall bill such taxes to Tenant, and same shall be deemed to
be additional rent, due five (5) days after such billing.
ATTORNMENT & SUBORDINATION
55. Tenant agrees that this Lease is and shall be subordinate to
any mortgage secured by or ground lease on the Building or Real Property and
that in the event of any action or proceeding for the foreclosure of any
mortgage to which this Lease is subordinate Tenant shall attorn to the purchaser
at the sale of the Building on such foreclosure and Tenant further agrees to pay
to the mortgagee on its entry into possession pursuant to the provisions of its
mortgage, or to a receiver appointed to collect the rents, issues and profits of
the property, the rents payable by Tenant hereunder upon being notified by the
mortgagee of any default under the mortgage and of the mortgagee's entry into
possession of the property or of the appointment of any such receiver.
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INDEMNIFICATION
56. Tenant shall indemnify and save harmless Landlord and its agents
against and from: a) any and all claims i) arising from (x) the conduct of
business in or management (other than by Landlord or Landlord's agent or
employee) of the Demised Premises or (y) any work or thing whatsoever done, or
any condition created (other than by Landlord or Landlord's agent or employee)
in or about the Demised Premises during the term of this Lease or during the
period of time, if any, prior to the Commencement Date that Tenant may have been
given access to the Demised Premises pursuant to this Lease, or (ii) arising
from any negligence or otherwise wrongful act or omission of Tenant or any of
its subtenants or licensees or invitees or its or their employees, agents, or
contractors; and, b) all costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought against Landlord
by reason of any such claim, Tenant, upon notice from Landlord, shall resist and
defend such action or proceeding by counsel chosen by Tenant who shall be
reasonably satisfactory to Landlord. Tenant or its counsel shall keep Landlord
fully apprised at all times of the status of such defense. Counsel for Tenant's
insurer shall be deemed satisfactory to Landlord.
TENANT'S PUNCTUAL PAYMENT OBLIGATION
57. Tenant expressly recognizes that Tenant's due and punctual
performance of all of its obligations under this Lease throughout the term
thereof is of paramount importance to Landlord and, without limiting the
provisions of Article 17, Tenant agrees that, if Tenant shall default a) in the
timely payment of fixed rent or additional rent and such default shall continue
for or be repeated in two consecutive months or for or in a total of four months
in any period of twelve months, or b) in the timely performance of any other
obligations of Tenant under this Lease and such default shall occur more than
three times in any period of six months, then notwithstanding that such default
shall have been cured within the applicable grace period provided in said
Articles, any further similar default shall be deemed to be deliberate and
Landlord thereafter may either (i) serve a three (3) day notice of cancellation
of this Lease as and with the effects provided in subparagraph (1) of Article
17, or (ii) by notice to Tenant, increase the fixed rent from and after the date
of such notice for the remainder of the term of this Lease, to 115% of the fixed
rent that would otherwise have been payable hereunder.
TENANT'S CHECKS TO LANDLORD
58. If and so long as Tenant shall not be in default in the timely
payment of fixed rent or additional
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rent or the timely performance of any of Tenant's other obligations under this
Lease beyond the time provided in this Lease to cure such default, Landlord will
accept payments due by Tenant hereunder by unendorsed check payable to Landlord
or its designated agent, subject to collection and drawn on a bank or trust
company that is a member of the New York Clearing House Association. From and
after any default by Tenant, and whether or not the same shall be cured,
Landlord may at any time thereafter require Tenant to pay the fixed rent and
additional rent by unendorsed certified or official bank check payable to
Landlord drawn on a bank or trust company that is a member of the New York
Clearing House Association.
CONSENTS, APPROVALS
59. a) Whenever in this Lease it is provided that either party
shall not unreasonably withhold consent or approval or shall exercise its
judgment reasonably, such consent or approval or exercise of judgment
(hereinafter referred to collectively as "consent") shall also not be
unreasonably withheld or delayed. If a party considers that the other party has
unreasonably withheld or delayed a consent, it shall so notify the other party
within ten (10) days after receipt of notice of denial of the requested consent
or, in case notice of denial is not received within twenty (20) days after
making its request for the consent, within ten (10) days after the expiration
such twenty (20) day period and within sixty (60) days after giving the first
mentioned notice, it may submit the question of whether the withholding or
delaying of such consent, is unreasonably to judicial determination by
commencement of an appropriate action or proceeding therefor. Failure to give
such first mentioned notice or to make such submission to judicial determination
within the period above hereinbefore provided therefor shall preclude any
further right to dispute the reasonableness of such withholding of consent. A
consent shall not be deemed to have been unreasonably withheld or delayed unless
the aggrieved party complies with the foregoing procedure and it shall be
finally so determined by adjudication as aforesaid. In the event of such
determination, the requested consent shall be deemed to have been granted for
all purposes of this Lease, however, the party who shall have refused or failed
to give such consent shall not have any liability for damages or otherwise to
the other party therefor. The only remedy for an unreasonable withholding or
delaying of consent by either party shall be as provided in this Article;
b) Wherever in this Lease or any Exhibit it is provided
that the approval of a representative of either party (such as Landlord's
engineer or architect or Tenant's designer or engineer) is required for any
particular matter, such approval shall be deemed to be a consent of the party
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for the purpose of Part (a) of this Article, provided that a true copy of the
notice requesting such approval is given to the party so represented before the
other party may claim that such approval has been unreasonably withheld or
delayed;
c) Whenever Tenant shall submit to Landlord any plan,
agreement or other document for Landlord's consent or approval, and Landlord
shall require the expert opinion of Landlord's counsel, architect, engineer or
other representative or agent of Landlord as to the form or substance thereof,
Tenant shall pay the reasonable fee of such expert for his opinion. Landlord's
demand upon Tenant for reimbursement, or direct payment of such fees and
disbursements, shall be deemed "additional rent" under this agreement.
CONSTRUCTION POLICY
60. Notwithstanding anything contained herein or any "CONSTRUCTION
POLICY" or other rules, regulations or policy promulgated or to be promulgated
by Landlord or Building management to the contrary, there shall be no charge to
Tenant for use of freight elevators on weekdays from 9:00 a.m. to 6:00 p.m. for
the purpose of demolition or construction in the Demised Premises or any other
purposes, so long as the same is in conformity with Building rules and
regulations exclusive of charges. Tenant agrees to pay for its use of freight
elevators on weekends, and holidays, and before 9:00 a.m. and after 6:00 p.m. on
weekdays, for the purpose of construction or demolition in the Demised Premises,
at the rate of $95.00 (Ninety-Five Dollars) per hour of elevator use in
conformity with union practice. There shall be no minimum charge for such use.
ALTERATIONS
61. a) Article "3" is hereby amended by adding the following at
the end thereof:
"During the term of this lease, Tenant may, at its own expense, make
such non-structural alterations and installations as Tenant may deem necessary
or desirable in order to fit the Demised Premises for Tenant's use. Whether or
not plans for any of the proposed alterations and installations are required by
law, Tenant agrees to submit all plans and specifications relating to the same
to Landlord for Landlord's written approval prior to the submission thereof, if
required, for approval by the authorities having jurisdiction thereover.
Landlord agrees that it will not unreasonably withhold or delay such approval.
No work shall be commenced until: a) Landlord shall have given its written
approval of the plans and specifications; b) Tenant shall have obtained and
exhibited to Landlord all the required permits, consents and authorizations from
the
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authorities having jurisdiction over the work to be done, and c) Tenant shall
have delivered to Landlord certificates of property damage and public liability
insurance in limits reasonably acceptable to Landlord, together with Workmen's
Compensation insurance certificates, all with evidence of payment of premium
thereon and providing for at least ten (10) days' prior written notice of
cancellation to Landlord.
The said proposed alterations and installations shall be subject to
and shall conform with all existing structural and mechanical conditions of the
Demised Premises and the Building containing the same and shall not contemplate
any changes or revisions thereof. The performance of the said work by Tenant
shall not unreasonably interfere with the quiet and useful enjoyment of other
portions of the Building containing the Demised Premises and shall in all
respects be expeditiously completed in conformity with approved plans and comply
with all laws, orders and regulations of governmental authorities and the Board
of Fire Underwriters having jurisdiction thereof and shall be made and completed
free and clear of liens and in compliance with the provisions of Article "3" and
"6" hereof."
b) All Tenant's alterations shall comply with the Americans With
Disabilities Act.
INSURANCE
62. a) Tenant shall provide and keep in full force and effect,
throughout the term of this Lease, for the benefit of Landlord and Tenant,
general liability insurance in a good and solvent insurance company authorized
to do business in the State of New York selected by Tenant and satisfactory to
Landlord, of no less than TWO MILLION ($2,000,000.00) DOLLARS, in respect of
injuries or death to any one person, TWO MILLION ($2,000,000.00) DOLLARS in
respect to any one accident and TWO HUNDRED THOUSAND ($200,000.00) DOLLARS in
respect to property damage. These amounts shall be increased every three (3)
years in accordance with cost-of-living increases, using 1999 as the base year.
b) Tenant shall deliver certificates of such general
liability insurance to Landlord on or prior to commencement date of the term and
thereafter shall deliver certificates of insurance renewing or replacing such
insurance not less than fifteen (15) days prior to the expiration of each such
policy of insurance. If Tenant shall fail to provide, after five (5) days'
notice, any insurance required pursuant to this Article, Landlord may effect the
same and pay the premium therefor for a period not exceeding one (1) year, and
the premium so paid by Landlord shall be payable by Tenant as "additional rent"
upon demand therefor.
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c) All of such policies shall contain a clause as follows:
"This insurance shall not be invalidated should the insured waive in
writing prior to a loss, any and all rights of recovery, against any party for
loss to the insured property hereof."
WATER
63. If Tenant requires, uses or consumes water for any
purpose in addition to ordinary lavatory purposes (of which fact Tenant
constitutes Landlord to be the sole judge), Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy Tenant shall keep said meter
installation equipment in good working order and repair at Tenant's own cost and
expense, in default of which Landlord may cause such meter and equipment to be
replaced or repaired and collect the cost thereof from Tenant. Tenant agrees to
pay for water consumed, as shown on said meter as and when bills are rendered,
and on default in making such payment Landlord may pay such charges and collect
the same from Tenant. Tenant covenants and agrees to pay the sewer rent, charge
or any other tax, rent, levy or charge which now or hereafter is assessed,
imposed or a lien upon the Demised Premises or the realty of which they are a
part pursuant to law, order or regulation made or issued in connection with the
use, consumption, maintenance or supply of water, water system or sewage or
sewage connection or system. The bills rendered hereunder by the Landlord shall
be payable by Tenant as additional rent. If the Building or the Demised Premises
or any part thereof be supplied with water through a meter through which water
is also supplied to other premises, Tenant shall pay to Landlord as additional
rent, on the first day of each month $50.00 of the total meter charges, as
Tenant's portion. Independently of and in addition to any of the remedies
reserved to Landlord hereinabove or elsewhere in this Lease, Landlord may sue
for and collect any monies to be paid by Tenant or paid by Landlord for any of
the reasons or purposes hereinabove set forth.
SPRINKLER
64. Anything elsewhere in this Lease to the contrary
notwithstanding, if the New York Board of Underwriters or the New York Fire
Insurance Exchange or any bureau, department or official of the federal, state
or city governments require or recommend the installation of a sprinkler system
or that any changes, modifications, alterations, or additional sprinkler heads
or other equipment
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be made or supplied in an existing sprinkler system by reason of Tenant's
business, or the location of partitions, trade fixtures, or other contents of
the Demised Premises, or for any other reason, or if any such sprinkler system
installations, changes, modifications, alterations, additional sprinkler heads
or other such equipment, become necessary to prevent the imposition of a penalty
or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make such sprinkler system installations,
changes, modifications, alterations, and supply additional sprinkler heads or
other equipment as required whether the work involved shall be structural or
nonstructural in nature. Tenant shall pay to Landlord as additional rent the sum
of $50.00 on the first day of each month during the term of this Lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
GLASS
65. Tenant shall promptly replace, at the expense of Tenant, any
and all plate and other glass damaged or broken from any cause whatsoever in and
about the Demised Premises.
UTILITIES ESCALATION
66. a) Escalation for increase in utility costs, as used here:
i) "Utility Year" shall mean the period of the first
twelve (12) full calendar months beginning with or immediately following the
Commencement Date and each succeeding period of twelve (12) full calendar months
thereafter falling wholly or partly within the term of this Lease;
ii) "Steam Cost" shall mean the actual cost to Landlord
of all steam procured by Landlord for use in the operation of the Building,
other than steam furnished by Landlord to and paid for by any tenant on a
metered basis;
iii) "Fuel Cost" shall mean the actual cost to Landlord
of all fuel or oil procured by Landlord for use in the operation of the Building
other than fuel or oil furnished by Landlord to and paid for by any tenant;
iv) "Electricity Cost" shall mean the cost to landlord
of all electricity use in lighting all the public and service areas of the
building and operating all of the service facilities of the Building (usually
known and herein referred to as "Public Light and Power"). Such cost shall be
determined by applying Landlord's Building average
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cost per kilowatt of demand and per kilowatt hour of consumption) to the number
of kilowatts of demand and the number of kilowatts of consumption (or the number
of kilowatt hours of consumption) of Public Light and Power as such number(s)
shall be determined by Landlord's electric consultant;
v) "Utilities Cost" shall mean the sum of Steam Cost,
Fuel Cost and Electricity Cost.
vi) "Base Utilities Cost" shall mean the Utilities Cost
for the fiscal year commencing April 1, 2000, and ending March 31, 2001.
b) If the Utilities Cost for any Utility Year shall be
greater than the Base Utilities Cost, Tenant shall pay as additional rent for
such Utility Year a sum equal to 1.9% of the amount by which the Utilities Cost
for such Utility Year shall exceed the Base Utilities Cost (which amount is
hereinafter called the "Utilities Payment"). Should this Lease terminate prior
to the expiration of a Utility Year, such Utilities Payment shall be prorated to
and shall be payable on or as and when ascertained after the Expiration Date.
Tenant's obligation to pay such additional rent shall survive the termination of
this Lease.
c) With reasonable promptness after the end of each Utility
Year, Landlord shall render a statement (the "Utilities Statement") of the
Utilities Payment, if any, due from Tenant for such Utility Year. The Utilities
Statement shall show in reasonable detail the Utilities cost for the Utility
Year and the manner in which it was computed, and the computation therefrom of
the Utilities Payment due from Tenant. Subject to the right of contest provided
in Article 74, below, Tenant shall pay the amount of the Utilities Payment shown
on such Utilities Statement concurrently with the installment of fixed rent then
or next due, or if such Utilities Statement shall be rendered at or after the
termination of this Lease, within thirty (30) days after such rendition.
VIOLATIONS
67. In the event that Landlord is compelled or directed to perform
any work to the Building pertaining to or to conform to local or governmental
rules, statutes or regulations (for example, Local Law 5 or Local Law 10), after
the date of the Lease, then and in such event Tenant shall pay 1.9% of the costs
of such work, which Tenant agrees to remit within five (5) days after
presentation of bills to Tenant therefore. Said remittance due from Tenant under
and pursuant to this Article are deemed to be "additional rent".
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SECURITY DEPOSIT
68. Tenant's security deposit shall be held in Landlord's interest
bearing security deposit account, with interest accruing annually; Landlord
shall be entitled to 1% interest thereon. Tenant shall replenish any draw down
of Tenant's security deposit by Landlord within five (5) days thereof.
LANDLORD'S RIGHT TO MOVE TENANT
69. Landlord, upon at least thirty (30) days written notice to
Tenant, may move Tenant to comparable space with the same rent and additional
rent per square foot as in this Lease, co-terminous to the expiration of this
Lease.
CONTINUOUS OCCUPANCY
70. a) Tenant acknowledges that its continued occupancy of the
demised premises, and the regular conduct of its business therein, are of utmost
importance to the Landlord in the renewal of other leases in the building, in
the renting of vacant space in the building, in the providing of electricity
and/or steam and other services to the tenants in the building, and in the
maintenance of the character and quality of the tenants in the Building. Tenant
therefore covenants and agrees that it will occupy the entire demised premises
and will conduct its business therein in the regular and usual manner,
throughout the term of this lease. Tenant acknowledges that Landlord is
executing this lease in reliance upon these covenants and that these covenants
are a material element of consideration inducing the Landlord to execute this
lease. Tenant further agrees that if it vacates the demised premises or fails to
so conduct its business therein, at any time during the term of this lease,
without the prior written consent of Landlord, then all rent and additional rent
reserved in this lease from the date of such breach to the expiration date of
this lease shall become immediately due and payable to Landlord.
b) The words "become vacant or deserted" as used elsewhere
in this lease shall include Tenant's failure to occupy or use as by this Article
required.
c) If any provision of this Article of this lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Article, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each provision
of this Article and of this lease shall be valid and be enforced to the fullest
extent permitted by law.
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SIGNAGE; WINDOW TREATMENTS; DIRECTORY LISTINGS
71. a) Tenant shall place no signs, lettering or advertisements
in or about any window of the Demised Premises.
b) Tenant shall have such window treatments in the Demised
Premises only as are approved in advance by Landlord, which approval shall not
be unreasonably withheld or delayed.
c) Tenant shall be entitled to no more than three (3) lobby
directory listings at no charge.
TENANT'S WORK
72. Tenant shall be solely liable and responsible for all
improvements to and installation of the Demised Premises. All such improvements
shall be in a first-class manner, and commenced and completed promptly,
following approval of plans by Landlord.
TENANT REGISTRATION IN NEW YORK
73. Tenant shall register with the New York Secretary of
State as doing business in New York by no later than May 15, 2000; and, it shall
remain so qualified, in good standing, during the term of this Lease Agreement.
TENANT WAIVERS
74. Landlord's statements or invoices for any rent or additional
rent ("Statements") shall be conclusive and binding upon Tenant unless:
(i) within thirty (30) days after receipt of any such
Statement, Tenant shall notify Landlord, in writing, that it disputes the
correctness of the said Statement, specifying the respects in which it is
claimed to be incorrect, in detail; and,
(ii) If such dispute shall not have been settled by agreement,
Tenant shall submit the dispute to judicial determination by commencement of an
appropriate action or proceeding within sixty (60) days after receipt of such
Statement. Pending the determination of such dispute by agreement or judicial
proceeding as aforesaid, Tenant shall pay the rent or additional rent in
accordance with the Statement in issue and such payment shall be without
prejudice to Tenant's position. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay
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Tenant, or Tenant shall be entitled to credit against rents then or thereafter
due hereunder, the amount of Tenant's overpayment of rent or additional rent(s)
resulting from compliance with the Statement in issue.
Failure to abide by (i) and/or (ii), above, shall bar Tenant from
thereafter disputing a Statement theretofore issued by Landlord.
b) Landlord's failure during the Lease term to prepare and
deliver any of the statements, notices, or bills set forth in any article with
additional rent, or Landlord's failure to make a demand, shall not in any way
cause Landlord to forfeit or surrender its rights to collect any items of
additional rent that may have become due during the term of this Lease. Tenant's
liability for the amounts due under this Lease shall survive the expiration of
the Term.
SETBACKS; ROOF AREAS
75. If the Demised Premises are adjacent to any setback or roof
area of the Building, Tenant covenants not to use or permit the use of same for
any purpose whatsoever.
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EXHIBIT "A"
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the easterly side of
Broadway and the southerly side of West 39th Street;
Running thence easterly along said southerly side of West 39th Street, 144 feet
11 3/4 inches to a point distant 250 feet west of Avenue of the Americas as
measured along the southerly side of West 39th Street;
Running thence southerly and parallel with the westerly side of Avenue of the
Americas 98 feet 9 inches to the center line of the block;
Running thence westerly along said center line of the block and parallel with
the southerly side of West 39th Street 50 feet to a point which is distant 300
feet westerly from Avenue of the Americas measured along the center line of the
block;
Running thence northerly and parallel with the westerly side of Avenue of the
Americas 10 feet;
Running thence westerly along a line parallel with the southerly side of West
39th Street 14 feet 9 1/4 inches to a point of intersection of said line with a
line drawn at right angles to the easterly side of Broadway from a point therein
distant 98 feet northerly from the northerly side of West 39th Street measured
along the easterly side of Broadway;
Running thence westerly along said aforementioned line drawn at right angles to
the easterly side of Broadway; and
Running thence northerly along said easterly side of Broadway 107 feet 1/8 inch
to the point of place of BEGINNING.
SAID PREMISES known as 1410 Broadway.
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EXHIBIT "B"
Tenant Estoppel Certificate
TENANT'S NAME:
PREMISES: 1410 Broadway, New York, NY
Unit:
LANDLORD: L.H. Charney Associates
LEASE DATED: , 2000 (the
"Lease") ------------------------------------------
TENANT'S NOTICE ADDRESS: 1410 Broadway
New York, NY 10018
DATE: , 2000
-------------------------------
The undersigned, Tenant, hereby certifies to General Electric
Capital Corporation, for itself and as agent for the holders of the first
mortgage loan on 11 East 36th Street, New York, New York, and their respective
successors and assigns (hereinafter collectively referred to as "Lenders"),
that:
1. Tenant has accepted possession of the Premises pursuant to the terms of
the lease described above (the "Lease"). The Lease term commenced on
____________,199___. The termination date of the Lease, excluding renewals
and extensions, is ___________________.
2. The minimum monthly rent presently payable under the Lease is _________
_____________.
3. Any improvements required by the terms of the Lease to be made by
Landlord have been completed to the satisfaction of Tenant in all
respects, and Landlord has fulfilled all of its duties under the Lease.
4. The Lease has not been assigned, modified, supplemented or amended in
any way. The Lease constitutes the entire agreement between the parties
and there are no other agreements between Landlord and Tenant concerning
the Premises.
5. The Lease is valid and in full force and effect, and, to the best of
Tenant's knowledge, neither Landlord nor Tenant is in default thereunder.
Tenant has no defense, setoff or counterclaim against Landlord
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arising out of the Lease or in any way relating thereto, or arising out of
any other transaction between Tenant and Landlord, and no event has
occurred and no condition exists, which with the giving of notice or the
passage of time, or both, will constitute a default under the Lease.
6. No rent or other sum payable under the Lease has been paid more than
one month in advance.
7. Tenant acknowledges that Tenant has received notice that the Lease will
be assigned to Lenders. Tenant understands that under the provisions of
the assignment, the Lease cannot be terminated (either directly or by the
exercise of any option which could lead to termination) or modified in any
of its terms, or consent be given to the release of any party having
liability thereon, without the prior written consent of Lenders, that
without such consent, no rent may be collected or accepted more than one
month in advance and that the interest of the Landlord in the Lease has
been assigned to Lenders solely as security for the purposes specified in
the assignment and Lenders assume no duty, liability or obligations
whatever under the Lease or any extension or renewal thereof.
8. Tenant hereby acknowledges and agrees that if Lenders shall succeed to
the interest of Landlord under the Lease, Lenders shall assume (only while
owner of and in possession or control of the building of which the
Premises are a part) and perform all of Landlord's obligations under the
Lease, but shall not be liable for any act or omission of any prior
landlord (including the present landlord), liable for the return of any
security deposit, subject to any offset or defense which Tenant may have
against any such prior landlord or bound by any rent or additional rent
Tenant may have paid for more than the current month to any such prior
landlord or bound by any assignment, surrender, termination, cancellation,
waiver, release, amendment or modification of the Lease made without
Lenders' express written consent.
9. Tenant shall give Lenders prompt written notice of any default of
Landlord under the Lease if such default entitles Tenant, under law or
otherwise, to terminate the Lease, reduce rent or credit or offset any
amount against future rents and shall give Lenders reasonable time (but in
no event less than 90 days after receipt of such notice) to cure or
commence curing such default prior to exercising (and as a condition
precedent to its right to exercise) any right Tenant may have to terminate
the Lease or to reduce rent or credit or offset any amounts against the
rent. Tenant shall also
32
<PAGE>
give such written notice and cure period to any successor in interest of
Lenders, any purchaser at a foreclosure sale under the mortgage, any
transferee who acquired the property by deed in lieu of foreclosure or any
successor or assignee thereof.
10. Tenant shall not look to Lenders, as mortgagee, mortgagee in
possession, or successor in title to the Premises, in connection with the
return of or accountability with respect to, any security deposit, unless
said sums have actually been received by Lenders as security for Tenant's
performance under the Lease.
11. Tenant shall neither suffer nor itself manufacture, store, handle,
transport, dispose of, spill, leak, dump any toxic or hazardous waste,
waste product or substance (as they may be defined in any federal, state
or local statute, rule or regulation pertaining to or governing such
wastes, waste products or substances) on the Premises, the building of
which the Premises are a part of the land under such building at any time.
12. All notices and other communications from Tenant to Lenders shall be in
writing and shall be delivered or mailed by registered mail, postage paid,
return receipt requested, addressed to Lenders at:
GENERAL ELECTRIC CAPITAL CORPORATION
125 Park Avenue
New York, New York 10017
Attn: Project Manager - 1410 Broadway
with a copy to:
HERRICK FEINSTEIN
Two Park Avenue
New York, New York 10016
Attn: Neil R. Shapiro, Esq.
13. Tenant agrees to pay all rents and other amounts due and owing under
the Lease to Lenders at the address provided to Tenant in a written notice
from Landlord or Lenders to Tenant, and to continue to make such payments
to Lenders until Lenders have directed Tenant, in writing, to make
payments to some other party or address.
14. This Estoppel Certificate is being executed and delivered by Tenant in
connection with Lenders loans to Landlord, which loans are secured in part
by an assignment to Lenders of Landlord's interest in the Lease, and with
the intent and understanding that the above statements and agreements will
be relied upon by Lenders. Nothing contained in this Estoppel
33
<PAGE>
Certificate shall limit Lenders' rights under the mortgages and the
assignments executed by Landlord in favor of Lenders and recorded in the
public records.
TENANT: Cygne Designs, Inc.
By: /s/ Bernard Manuel
-------------------
Name: Bernard Manuel
Title: President
STATE OF New York
)
s.s.:
)
COUNTY OF Kings/New York
On the 30 day of March, 2000, before me personally came Bernard Manuel, to
me known, who, being by me duly sworn, did depose and say that (s)he resides at
680 Fifth Avenue NY, NY 10019; that (s)he is of the corporation described in
and which executed the foregoing instrument; and that (s)he signed his/her name
thereto by order of the board of directors of said corporation.
DANNY CHIN
Notary Public, State of New York
No. 4988775 /s/ Danny Chin
Qualified in Kings County -----------------------------
Commission Expires November 18, 2001 Notary Public
STATE OF
)
s.s.:
)
COUNTY OF
On the _____________ day of ___________, 2000, before me personally
appeared ______________________________, to me known and known to be the
individual described in, and who executed the foregoing instrument; and (s)he
thereupon duly acknowledged to me that (s)he executed the same.
-----------------------------
Notary Public
<PAGE>
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
Owner making the within lease with Tenant, the undersigned guarantees to
Owner, Owner's successors and assigns, the full performance and observance of
all the covenants, conditions and agreements, therein provided to be performed
and observed by Tenant, including the "Rules and Regulations" as therein
provided, without requiring any notice of non-payment, non-performance, or
non-observance, or proof, or notice, or demand, whereby to charge the
undersigned therefor, all of which the undersigned hereby expressly waives and
expressly agrees that the validity of this agreement and the obligations of the
guarantor hereunder shall in no wise be terminated, affected or impaired by
reason of the assertion by Owner against Tenant of any of the rights or remedies
reserved to Owner pursuant to the provisions of the within lease. The
undersigned further covenants and agrees that this guaranty shall remain and
continue in full force and effect as to any renewal, modification or extension
of this lease and during any period when Tenant is occupying the premises as a
"statutory tenant." As a further inducement to Owner to make this lease and in
consideration thereof, Owner and the undersigned covenant and agree that in any
service or proceeding brought by either Owner or the undersigned against the
other on any matters whatsoever arising out of, under, or by virtue of the terms
of this lease or of this guaranty that Owner and the undersigned shall and do
hereby waive trial by jury.
Dated New York City 19
------------------------------------------ --------------
WITNESS:
- --------------------------------------------------------------------------------
STATE OF NEW YORK, ) ss.:
County of )
On this day of , 19 , before me
personally came ,
to me known and known to me to be the individual described in, and who executed
the foregoing Guaranty and acknowledged to me that he executed the same.
-----------------------------------
Notary
[L.S.]
- --------------------------------------------------------------------------------
Residence
----------------------------------------------------------------------
Business Address
---------------------------------------------------------------
Firm Name
----------------------------------------------------------------------
[GRAPHIC OMITTED] IMPORTANT -- PLEASE READ [GRAPHIC OMITTED]
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises of the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tables shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall mark, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. No Tenant shall lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the hours
of 6 P.M. and 8 A.M. and at all hours on Sundays, and legal holidays all persons
who do not present a pass to the building signed by Owner. Owner will furnish
passes to persons for whom any Tenant requests same in writing. Each Tenant
shall be responsible for all persons for whom he requests such pass and shall be
liable to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superindendant prior to 3:00 P.M. in the
case of services required on week days, and prior to 3:00 P.M. on the day prior
in the case of after hours service required on weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Landlord's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
Address 1410 Broadway
New York, NY
Premises Unit: 1002
================================================================================
L.H. CHARNEY ASSOCIATES, as
Landlord
TO
CYGNE DESIGNS, INC., as Tenant
================================================================================
STANDARD FORM OF
[SEAL Office [SEAL
THE REAL ESTATE THE REAL ESTATE
BOARD OF NEW YORK] Lease BOARD OF NEW YORK]
The Real Estate Board of New York, Inc.
(c)Copyright 1963. All rights Reserved.
Reproductions in whole or in part prohibited.
================================================================================
Dated 19 .
Rent per Year
Rent per Month
Term
From
To
Drawn by ............................. Checked by .........................
Entered by ........................... Approved by ........................
================================================================================
<PAGE>
AGREEMENT
=========
Recitals
A. CYGNE DESIGNS, INC., ("Tenant"), a New York corporation, has entered
into a written lease dated as of March 20, 2000, (the "Lease") with L.H.
Charney Associates ("Landlord"), covering premises (the "Demised
Premises") located at Unit 1002, 1410 Broadway, New York, New York.
B. Landlord is concerned that if Tenant defaults under the Lease,
Tenant may continue to occupy the Demised Premises to the detriment of
Landlord. Therefore, in order to avoid that situation, Landlord has
requested the undersigned Principal of Tenant to guarantee to Landlord
that if Tenant defaults under the Lease, Tenant will vacate the Demised
Premises. The result being that if Tenant vacates the Demised Premises at
the time of a default (hereinafter "default"), Principal will have no
obligation or liability under this Agreement (although the obligation and
liability of Tenant under the Lease will continue in accordance with the
Lease).
C. Accordingly, the undersigned Principal for good and valuable
consideration, agrees as follows:
1. Until Tenant vacates the entire Demised Premises (for any reason and
at any time) Principal guarantees to Landlord the payment and performance
of Tenant's obligations under and in accordance with the lease, including
without limitation, the payment of fixed and additional rent (the
"obligations"), so that Principal will have no obligation or liability for
obligations which accrue under the Lease following the date Tenant vacates
the entire Demised Premises. If, however, Tenant defaults and does not
vacate the entire Demised Premises, then until Tenant does vacate Landlord
may, at its option, proceed against Principal and Tenant, jointly and
severally, or Landlord may proceed against Principal under this Agreement
without commencing any suit or proceeding of any kind against Tenant or
without having obtained any judgment against Tenant.
2. The obligations of Principal under this Agreement are unconditional,
are not subject to any set-offs or defense based upon any claim Principal
may have against Landlord, and will remain in full force and effect
without regard to any circumstance or condition, including without
limitation:
<PAGE>
(a) any modification or extension of the Lease (except that the
liability of Principal hereunder will apply to the Lease as so modified or
extended);
(b) any exercise or nonexercise by Landlord of any right or remedy
in respect of the Lease or any waiver, consent or other action or
omission, in respect of the Lease;
(c) any transfer by Landlord or Tenant in respect of the Lease or
any interest in the Demised Premises;
(d) any bankruptcy, insolvency, receivership, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
involving or affecting Landlord or Tenant or their obligations, properties
or creditors, or any action taken with respect to such obligations or
properties of the Lease, by any trustee or receiver of Landlord or Tenant,
or by any court in any such proceeding;
(e) any defense to or limitation on the liability or obligations of
Tenant under the Lease or any invalidity or unenforceability, in whole or
in part, of any obligation of Tenant under the Lease or of any term of the
Lease;
f) any transfer by Principal of any or all of the capital stock of
Tenant or the control thereof.
3. Principal waives presentment and demand for payment, notice of
nonpayment or nonperformance, and any other notice or demand to which
Principal might otherwise be entitled.
4. If judgment is entered against Principal in any action, suit or
proceeding to enforce this Agreement, Principal will reimburse Landlord
for all costs and expenses incurred by Landlord in connection therewith,
including without limitation, reasonable attorneys' fees.
5. Principal and Landlord each waive trial by jury of all issues
arising in any action, suit or proceeding to which Landlord and Principal
may be parties in connection with this Agreement.
6. Principal, at its expense, will execute, acknowledge and deliver all
instruments and take all actions as Landlord from time to time may request
for the assuring to Landlord the full benefits intended to be created by
this Agreement.
2
<PAGE>
7. No delay by Landlord in exercising any right under this Agreement
nor any failure to exercise the same will waive that right or any other
right.
8. Any notice or other communication hereunder must be in writing and
will be deemed duly served on the date it is mailed by registered or
certified mail in any post office station or letter box in the continental
United States, addressed if to Principal, to it at the address of
Principal set forth herein or such other address as Principal shall have
last designated by written notice to Landlord, and addressed if to
Landlord, to it at the address set forth above or such other address as
Landlord shall have last designated by written notice to Principal.
9. This Agreement may not be modified or terminated orally or in any
manner other than by an agreement in writing signed by Principal and
Landlord or their respective successors and assigns.
10. This Agreement and any issues arising hereunder will be governed by
the laws of the State of New York.
11. All remedies of Landlord by reason of this Agreement are separate
and cumulative remedies and no one remedy, whether exercised by Landlord
or not, will be in exclusion of any other remedy of Landlord and will not
limit or prejudice any other legal or equitable remedy which Landlord may
have.
12. If any provision of this Agreement or the application thereof to any
person or circumstance will to any extent be held unenforceable, the
remainder of this Agreement or the application of such provision to
persons or circumstances other than those as to which it is held
unenforceable, will not be affected thereby, and each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted
by law.
13. This Agreement will inure to the benefit of and may be enforced by
Landlord and its successors or assigns, and will be binding upon and
enforceable against Principal and its successors, assigns, heirs and
personal representatives. If there is more than one Principal, Principal's
obligations and liabilities under this Agreement will be joint and
several.
3
<PAGE>
IN WITNESS WHEREOF, undersigned Principal has duly executed this
Agreement as of the day and year first above written.
Principal: /s/ Bernard Manuel (L.S.)
----------------------------------------------
Bernard Manuel (Print Name)
----------------------------------------------
Home Address: 775 Park Ave.
New York, NY 10021
Home Telephone: 212 772 7089
Soc. Sec. No.: 127 52 9821
State of New York
County of Kings/New York DANNY CHIN
Notary Public, State of New York
Sworn to before me this 30th No. 4988775
day of March , 2000 Qualified in Kings County
Commission Expires November 18, 2001
/s/ Danny Chin
- ----------------------------
Notary Public
Principal: (L.S.)
----------------------------------------------
(Print Name)
----------------------------------------------
Home Address:
Home Telephone:
Soc. Sec. No.:
Sworn to before me this
day of , 2000
- ----------------------------
Notary Public
4
EXHIBIT 21
SUBSIDIARIES OF CYGNE DESIGNS, INC.
-----------------------------------
JURISDICTION OF
SUBSIDIARY ORGANIZATION OF INCORPORATION
- ---------- -----------------------------
Sportswear International (USA), Inc. Delaware
Cygne Guatemala, S.A. Guatemala
JMB Internacional, S.A. Guatemala
C.M. Israel Sewing Houses Ltd. Israel
M.T.G.I. - Textile Manufacturers
Group (Israel) Limited Israel
AC Services, Inc. Delaware
MBS (Cygne) Company Delaware
Cygne Group (F.E.) Limited Hong Kong
HKN (US) Inc. New York
Wear & Co. International, Inc. Delaware
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-77648) pertaining to the Employee Stock Option Plan of Cygne
Designs, Inc. and in the Registration Statement (Form S-8 No. 33-77650)
pertaining to the Stock Option Plan for non-employee Directors of Cygne Designs,
Inc. of our report dated April 7, 2000 with respect to the consolidated
financial statements and schedule of Cygne Designs, Inc. and Subsidiaries,
included in this Annual Report (Form 10-K) for the year ended January 29, 2000
of Cygne Designs, Inc.
New York, New York
April 28, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from the
Company's Condensed Consolidated Balance Sheets and Condensed Consolidated
Statements of Operations and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JAN-29-2000
<PERIOD-END> JAN-29-2000
<CASH> 7,020
<SECURITIES> 0
<RECEIVABLES> 1,853
<ALLOWANCES> 0
<INVENTORY> 2,421
<CURRENT-ASSETS> 11,696
<PP&E> 3,973
<DEPRECIATION> 1,501
<TOTAL-ASSETS> 14,768
<CURRENT-LIABILITIES> 9,741
<BONDS> 0
0
0
<COMMON> 124
<OTHER-SE> 4,903
<TOTAL-LIABILITY-AND-EQUITY> 14,768
<SALES> 55,398
<TOTAL-REVENUES> 55,398
<CGS> 50,657
<TOTAL-COSTS> 50,657
<OTHER-EXPENSES> 5,313
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 408
<INCOME-PRETAX> (980)
<INCOME-TAX> 47
<INCOME-CONTINUING> (1,027)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,027)
<EPS-BASIC> (0.08)
<EPS-DILUTED> (0.08)
</TABLE>
