SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
Commission file number 0-27042
ALPHANET SOLUTIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
NEW JERSEY 22-2554535
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
7 RIDGEDALE AVE., CEDAR KNOLLS, NEW JERSEY 07927
(Address of Principal Executive Offices) (Zip Code)
(973) 267-0088
(Registrant's Telephone Number,
Including Area Code)
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 the number of shares outstanding of each of the Registrant's
classes of common stock, as of July 31, 1998:
CLASS NUMBER OF SHARES
- ----- ----------------
Common Stock, $.01 par value 6,323,480
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ALPHANET SOLUTIONS, INC.
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION.................................................1
Item 1. Financial Statements.........................................1
Consolidated Balance Sheets
as of December 31, 1997
and June 30, 1998 (unaudited)................................2
Consolidated Statements of Income
for the Three Months and Six Months Ended
June 30, 1997 (unaudited) and 1998 (unaudited) ..............3
Consolidated Statements of Cash Flows
for the Six Months Ended
June 30, 1997 (unaudited) and 1998 (unaudited) ..............4
Notes to Consolidated Financial Statements (unaudited).......5
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition...............7
Results of Operations.......................................11
Liquidity and Capital Resources.............................13
PART II. OTHER INFORMATION...................................................16
Item 1. Legal Proceedings...........................................16
Item 4. Submission of Matters to a Vote of Security Holders.........17
Item 5. Other Information...........................................18
Item 6. Exhibits and Reports on Form 8-K............................18
SIGNATURES....................................................................19
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<PAGE>
ALPHANET SOLUTIONS, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1997 1998
------------ ------------
(unaudited)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents............................................. $ 2,689 $ 6,870
Accounts receivable, net.............................................. 50,388 38,138
Inventories........................................................... 4,941 6,589
Deferred income tax asset............................................. 1,651 1,651
Prepaid expenses and other current assets............................. 3,598 2,351
------------ ------------
Total current assets................................................ 63,267 55,599
Property and equipment, net................................................ 6,386 7,559
Other assets............................................................... 2,888 2,458
------------ ------------
Total assets........................................................ $ 72,541 $ 65,616
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of capital lease obligations.......................... $ 44 $ 6
Accounts payable...................................................... 17,921 13,797
Accrued expenses...................................................... 12,179 7,081
------------ ------------
Total current liabilities .......................................... 30,144 20,884
Advance from principal shareholder......................................... 675 675
------------ ------------
Total liabilities................................................... 30,819 21,559
------------ ------------
Shareholders' equity:
Preferred stock -- $0.01 par value; authorized
3,000,000 shares, none issued........................................ -- --
Common stock -- $0.01 par value; authorized
15,000,000 shares, 6,257,610 and 6,285,050 shares issued and
outstanding at December 31, 1997 and June 30, 1998,
respectively........................................................ 63 63
Additional paid-in capital............................................ 33,172 33,430
Retained earnings..................................................... 8,487 10,564
------------ ------------
Total shareholders' equity.......................................... 41,722 44,057
------------ ------------
Total liabilities and shareholders' equity.......................... $ 72,541 $ 65,616
============ ============
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
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ALPHANET SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
------------------------------ ------------------------------
1997 1998 1997 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net sales:
Product sales................................ $ 31,609 $ 29,823 $ 70,377 $ 61,119
Services and support......................... 10,201 15,099 17,934 29,293
----------- ----------- ----------- -----------
41,810 44,922 88,311 90,412
----------- ----------- ----------- -----------
Cost of sales:
Product sales................................ 28,003 26,300 62,496 53,580
Services and support......................... 6,736 10,424 11,764 19,915
----------- ----------- ----------- -----------
34,739 36,724 74,260 73,495
----------- ----------- ----------- -----------
Gross profit...................................... 7,071 8,198 14,051 16,917
----------- ----------- ----------- -----------
Operating expenses:
Selling expenses............................. 2,943 3,749 5,861 7,716
General and administrative expenses.......... 2,197 3,287 4,233 5,882
----------- ----------- ----------- -----------
5,140 7,036 10,094 13,598
----------- ----------- ----------- -----------
Operating income.................................. 1,931 1,162 3,957 3,319
----------- ----------- ----------- -----------
Other income (expense):
Interest and other income.................... 18 148 21 248
Interest expense............................. (85) (19) (146) (46)
----------- ----------- ----------- -----------
(67) 129 (125) 202
----------- ----------- ----------- -----------
Income before income taxes........................ 1,864 1,291 3,832 3,521
Provision for income taxes........................ 764 529 1,571 1,443
----------- ----------- ----------- -----------
Net income........................................ $ 1,100 $ 762 $ 2,261 $ 2,078
=========== =========== =========== ===========
Earnings per share - Basic........................ $ 0.21 $ 0.12 $ 0.44 $ 0.33
=========== =========== =========== ===========
Weighted average shares outstanding............... 5,257 6,282 5,180 6,271
=========== =========== =========== ===========
Earnings per share - Diluted...................... $ 0.20 $ 0.12 $ 0.42 $ 0.33
=========== =========== =========== ===========
Weighted average shares
and share equivalents outstanding.............. 5,476 6,383 5,385 6,390
=========== =========== =========== ===========
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
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ALPHANET SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30,
-----------------------------------
1997 1998
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income...................................................... $ 2,261 $ 2,078
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization................................. 721 1,298
Increase (decrease) from changes in:
Accounts receivable, net.................................... (2,731) 12,250
Inventories................................................. 234 (1,648)
Prepaid expenses and other current assets................... 696 1,247
Other assets................................................ 51 430
Accounts payable and accrued expenses....................... (1,399) (9,223)
------------- --------------
Net cash provided by (used in) operating activities........... (167) 6,432
------------- --------------
Cash flows from investing activities:
Property and equipment expenditures............................. (1,918) (2,471)
------------- --------------
Net cash used in investing activities......................... (1,918) (2,471)
------------- --------------
Cash flows from financing activities:
Net proceeds from sales of common stock 17,211 --
Exercises of stock options...................................... 22 258
Repayment of capital lease obligations.......................... (37) (38)
------------- --------------
Net cash provided by financing activities..................... 17,196 220
------------- --------------
Net increase in cash and cash equivalents.......................... 15,111 4,181
Cash and cash equivalents, beginning of period..................... 1,610 2,689
------------- --------------
Cash and cash equivalents, end of period........................... $ 16,721 $ 6,870
============= ==============
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
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ALPHANET SOLUTIONS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(in thousands, except per share amounts)
Note 1 -- Basis of Presentation:
The information presented for June 30, 1997 and 1998 and for the three
month and six month periods then ended is unaudited, but, in the opinion of the
management of AlphaNet Solutions, Inc. (the "Company"), the accompanying
unaudited consolidated financial statements contain all adjustments (consisting
only of normal recurring adjustments) which the Company considers necessary for
the fair presentation of the Company's financial position as of June 30, 1998,
the results of its operations for the three month and six month periods ended
June 30, 1997 and 1998 and its cash flows for the six month periods ended June
30, 1997 and June 30, 1998. The consolidated financial statements included
herein have been prepared in accordance with generally accepted accounting
principles and the instructions to Form 10-Q and Rule 10-01 of Regulation S-X.
Accordingly, certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted. These consolidated financial
statements should be read in conjunction with the Company's audited financial
statements for the year ended December 31, 1997, which were included as part of
the Company's Annual Report on Form 10-K, as filed with the Securities and
Exchange Commission.
Results for the interim period are not necessarily indicative of
results that may be expected for the entire year.
Note 2 -- Net Income Per Share:
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128 "Earnings per Share" ("SFAS No. 128"), which specifies the
computation, presentation and disclosure requirements for earnings per share
("EPS") of entities with publicly held common stock or potential common stock.
The statement defines two earnings per share calculations, basic and diluted.
The objective of basic EPS is to measure the performance of an entity over the
reporting period by dividing income available to common stock by the weighted
average shares outstanding. The objective of diluted EPS is consistent with that
of basic EPS, that is to measure the performance of an entity over the reporting
period, while giving effect to all dilutive potential common shares that were
outstanding during the period. The calculation of diluted EPS is similar to
basic EPS except both the numerator and denominator are increased for the
conversion of potential common shares. In February 1998, the Securities and
Exchange Commission staff issued Staff Accounting Bulletin No. 98 ("SAB 98")
revising previously issued statements to become consistent with SFAS No. 128 and
No. 130. SAB 98 requires the Company to revise its EPS computations to present
historical EPS including pre initial public offering periods. The computations
for earnings per share contained in this report incorporate SAB 98.
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ALPHANET SOLUTIONS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(in thousands, except per share amounts)
The following is a reconciliation of the number of shares used in the
basic EPS and diluted EPS computations:
COMPUTATION OF EARNINGS PER SHARE
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30,
-----------------------------------------------------------------------------------------
1997 1998
------------------------------------------- -------------------------------------------
NET PER SHARE NET PER SHARE
INCOME SHARES AMOUNT INCOME SHARES AMOUNT
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS................. $ 1,100 5,257 $ 0.21 $ 762 6,282 $ 0.12
Effect of dilutive stock
options................... -- 219 (0.01) -- 101 --
----------- ----- -------- ----------- ----- --------
Diluted EPS............... $ 1,100 5,476 $ 0.20 $ 762 6,383 $ 0.12
=========== ===== ======== =========== ===== ========
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-----------------------------------------------------------------------------------------
1997 1998
------------------------------------------- -------------------------------------------
NET PER SHARE NET PER SHARE
INCOME SHARES AMOUNT INCOME SHARES AMOUNT
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS................. $ 2,261 5,180 $ 0.44 $ 2,078 6,271 $ 0.33
Effect of dilutive stock
options................... -- 205 (0.02) -- 119 --
----------- ----- ---------- ----------- ----- --------
Diluted EPS............... $ 2,261 5,385 $ 0.42 $ 2,078 6,390 $ 0.33
=========== ===== ========== =========== ===== ========
</TABLE>
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<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION.
GENERAL
The Company is a single-source provider of information technology
("IT") products, services and support to Fortune 1000 and other large and
mid-sized companies located primarily in the New York-to-Philadelphia corridor.
The Company was formed in 1984 as an authorized reseller of computer hardware
and software products, and since 1990, has been developing and offering related
IT services. Although most of the Company's net sales to date have been derived
from IT product sales, the Company intends to continue expanding its service and
support offerings. There can be no assurances that the risks relating to
expansion of such offerings of its business will not have a material adverse
effect on the Company's financial position, results of operations, or cash
flows. For the first six months of 1998, net product sales were approximately
67.6% and services and support revenues were approximately 32.4% of the
Company's net sales.
The Company has entered into distribution agreements with Ingram Micro,
Inc. ("Ingram") and MicroAge Computer Centers, Inc. ("MicroAge"), two of the
nation's largest aggregators, to acquire most of its IT products for resale. The
Company's relationship with MicroAge commenced in 1984 and, as customer demand
for IT products grew, the Company initiated its relationship with Ingram in
1994. The distribution agreements with MicroAge and Ingram give the Company
access to such aggregators' extensive inventories and provide the Company with
electronic ordering capability, product configuration and testing, warehousing
and delivery. In general, the Company orders IT products, including
workstations, servers, enterprise computing products, networking and
communications equipment, and applications software from such aggregators on an
as-needed basis, thereby reducing the Company's need to carry large inventories.
During the first six months ended June 30, 1998, the Company acquired
approximately 49.5% and 32.9% of its products for resale from Ingram and
MicroAge, respectively.
In December 1997 the Company entered into a $20.4 million contract
("MTA contract") with the MTA-New York City Transit Authority ("MTA") to furnish
and install local and wide area computer network components throughout the MTA's
over 200 locations, including subway stations, electrical power substations and
a diverse group of train car maintenance facilities. The contract allows for
completion over a four-year period although the project schedule currently
anticipates a 24-month schedule. The aggregate revenues generated from the MTA
contract in the six months ended June 30, 1998 were approximately $1.0 million
consisting primarily of cabling materials and related services. Realization of
certain product sales and service and support revenues under the MTA contract
were delayed. For further discussion on the MTA contract and its effect on the
Company's results of operations, see "RESULTS OF OPERATIONS".
Except for the MTA contract, in general, there are no ongoing written
commitments by customers to purchase products from the Company and all product
sales are made on a purchase order basis. Furthermore, as the market for IT
products has matured, price competition has intensified and is likely to
continue to intensify. The Company's gross profits, margins and results of
operations could be adversely affected by such continued product pricing
pressure, a
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<PAGE>
significant reduction in product purchase orders from the Company's customers,
or a disruption in the Company's sources of product supply.
The Company offers network consulting, workstation support, application
development, communications installation, education, Help Desk, IT staffing
services, Internet and remote network management. Services and support revenue
is recognized as such services are performed. The Company's network consulting,
workstation support, application development, and communications installation
services are billed on a time and materials basis. The Company's education and
IT staffing services are fee-based on a per-course and per-placement basis,
respectively. The Company's Help Desk, Internet and remote network management
services are fee based and are dependent upon the scope of services. Generally,
the Company's service arrangements with its customers may be terminated by such
customers with limited advance notice and without significant penalty. The most
significant cost relating to the services component of the Company's business is
personnel expenses which consist of salaries, benefits and payroll-related
expenses. Thus, the financial performance of the Company's service business is
based primarily upon billing margins (billable hourly rates less the costs to
the Company of such service personnel on an hourly basis) and utilization rates
(billable hours divided by paid hours). The future success of the services
component of the Company's business will depend in large part upon its ability
to maintain high utilization rates at profitable billing margins. The Company's
utilization rates for service personnel likely will be adversely affected during
periods of rapid and concentrated hiring. In addition, the competition for
quality technical personnel has continued to intensify resulting in increased
personnel costs for the Company and many other IT service providers, which has
adversely affected the Company's billing margins.
The Company may receive manufacturer rebates resulting from equipment
sales. In addition, the Company receives volume discounts and other incentives
from certain of its suppliers. Recently, the Company has learned that price
protection and return policies provided by certain product manufacturers are
being revised and may be modified, restricted or eliminated. Except for products
in transit or products awaiting configuration at a Company facility, the Company
generally does not maintain large inventory balances. Despite this inventory
policy, changes in the price protection and return policies of the Company's
manufacturers may have an adverse affect on the Company's results of operations.
At the present time, the Company is unable to determine the impact, if any, of
the potential changes in such policies on its business or, if there is an
impact, whether such impact will be material. Other than such price protection
and return policies, the Company is unaware that any of its suppliers or
manufacturers have changed or intend to further change these programs. There can
be no assurances that any such rebates, discounts or incentives will continue at
historical levels, if at all. A significant adverse modification, restriction or
reduction in such programs could have a material adverse effect on the Company's
financial position, results of operations, or cash flows.
The Company's cost of sales includes primarily, in the case of product
sales, the cost to the Company of products acquired for resale, and in the case
of services and support revenue, salaries and related expenses for billable
technical personnel. The Company's selling expenses consist primarily of
personnel costs, including sales commissions earned by employees involved in the
sales of IT products, services and support. These employees include direct
sales, sales support and marketing personnel. Sales commissions are recorded as
revenue is recognized. General and administrative expenses consist of all other
operating expenses, including primarily salaries and occupancy costs for
administrative, executive and finance personnel.
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<PAGE>
The Company believes that its ability to provide a broad range of
technical services, coupled with its traditional strength in satisfying its
clients' IT product requirements and its long-term relationships with large
clients, positions the Company to continue to grow the services component of its
business, while further strengthening its product sales. As such, the Company
anticipates that an increasing percentage of its gross profits in the future
will be derived from the services and support component of its business.
However, in the near term, the Company believes that product sales will continue
to generate a significant percentage of the Company's gross profit. The Company
believes that its ability to be a single-source provider of IT products,
services and support enables it to earn margins higher than it would earn if it
sold products only.
YEAR 2000 DISCLOSURE
Historically, certain computer programs have been written using two
digits rather than four to define the applicable year, which could result in a
computer recognizing a date using "00" as the year 1900 rather than the year
2000. This, in turn, could result in major system failures or miscalculations,
and is generally referred to as the "Year 2000 Problem". The Company is
currently implementing a new third party developed enterprise wide data and
information system ("System"), as the foundation for the Company's new
management information system (MIS). The Company's current integrated accounting
system is not Year 2000 compliant. Although the System has not been fully
implemented, based upon representations of the provider of the System, the
Company believes upon its implementation, the Company's internal business
systems, including its computer systems, will be Year 2000 compliant. There can
be no assurance, however, that the Year 2000 Problem relating to the Company's
systems will not adversely affect its business, financial position, results of
operations or cash flows. For further discussion on the implementation of the
System see "LIQUIDITY AND CAPITAL RESOURCES".
The Company resells IT products of leading hardware manufacturers and
software developers. As a result, the Company has no control over the
development of computer systems, software products or other business systems
developed by such third parties. Consequently, there can be no assurance that
the computer systems, software products or other business systems sold by the
Company will accept input of, store, manipulate and/or output dates in the year
2000 or thereafter without error or interruption. As a result, the Company, as a
reseller, may be liable for such failures. Given the Company's role in the
distribution of such products, the Company is not able to accurately determine
the extent, if any, of such potential liability.
In addition, the purchasing patterns of the Company's customers and
potential customers may be affected by issues associated with the Year 2000
Problem. As companies devote significant resources to become Year 2000
compliant, these expenditures may result in reduced funds available to purchase
products or obtain services such as those offered by the Company. There can be
no assurance that the Year 2000 Problem will not adversely affect the Company's
business, financial position, results of operations or cash flows.
FORWARD LOOKING STATEMENTS
Certain statements included in this Form 10-Q, including, without
limitation, statements regarding the anticipated growth in the IT products and
services markets, the continuation of the
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trends favoring outsourcing of management information systems ("MIS") functions
by large and mid-sized companies, the anticipated growth in the services and
support component of the Company's business, the timing of the development and
implementation of the Company's new service offerings and the utilization of
such services by the Company's customers, the Company's objective to grow
through strategic acquisitions, and trends in future operating performance, are
forward-looking statements within the meaning of Section 21E of the Securities
Exchange Act of 1934, as amended. Such forward-looking statements include risks
and uncertainties, including, but not limited to: (i) the substantial
variability of the Company's quarterly operating results caused by a variety of
factors, some of which are not within the Company's control, including (a) the
short-term nature of the Company's customers' commitments, (b) patterns of
capital spending by customers, (c) the timing, size and mix of product and
service orders and deliveries, (d) the timing and size of new projects, (e)
pricing changes in response to various competitive factors, (f) market factors
affecting the availability of qualified technical personnel, (g) the timing and
customer acceptance of new product and service offerings, (h) changes in trends
affecting outsourcing of IT services, (i) disruption in sources of supply, (j)
changes in terms and conditions of purchases from sources of supply, (k) changes
in product, personnel and other operating costs, and (l) industry and general
economic conditions; (ii) changes in technical personnel billing and utilization
rates which are likely to be adversely affected during periods of rapid and
concentrated hiring; (iii) the intense competition in the markets for the
Company's products and services; (iv) the Company's ability to manage its growth
effectively which will require the Company to continue developing and improving
its operational, financial and other internal systems, including a major upgrade
of the Company's internal MIS infrastructure; (v) the Company's ability to
complete implementation of its MIS, the implementation can be accomplished
without future delays in monthly closings, or the costs in rectifying delays
would not be material; (vi) the Company's ability to develop, market, provide,
and achieve market acceptance of new service offerings to new and existing
customers; (vii) the Company's ability to attract, hire, train, and retain
qualified technical personnel in an increasingly competitive market; (viii) the
Company's substantial reliance on a concentrated number of key customers; (ix)
the MTA's right to terminate its contract with the Company, the Company's
continued compliance with its obligations under the MTA contract, or the
Company's ability to complete the project without incurring a loss; (x)
uncertainties relating to potential acquisitions, if any, made by the Company,
such as its ability to integrate acquired operations and to retain key customers
and personnel of the acquired business; (xi) the Company's dependence on vendor
authorizations to resell certain computer products and to provide related
services; (xii) the Company's dependence on certain aggregators for a
substantial portion of its products acquired for resale; (xiii) the Company's
reliance on the continued services of key executive officers and salespersons;
(xiv) the possibility that the currently installed computer systems, software
products or other business systems of the Company or its distributors,
manufacturers or customers, working either alone or in conjunction with other
software or systems, will not accept input of, store, manipulate and/or output
dates in the year 2000 or thereafter without error or interruption; (xv) the
ability to obtain a new credit facility upon terms and conditions satisfactory
to the Company; and (xvi) the Company's ability to implement required policies
and procedures regarding internal accounting controls. Such risks and
uncertainties may cause the Company's actual results to differ materially from
the results discussed in the forward-looking statements contained herein.
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<PAGE>
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1997 COMPARED TO THREE MONTHS ENDED JUNE
30, 1998
NET SALES. Net sales increased by 7.4%, or $3.1 million, from $41.8
million in 1997 to $44.9 million in 1998. Product sales decreased by 5.7%, or
$1.8 million, from $31.6 million in 1997 to $29.8 million in 1998. This decrease
in product sales was primarily attributed to lower average selling prices in
1998 due to continued pricing pressures on hardware manufacturers and reduced
unit volume. Service and support revenue increased by 48.0%, or $4.9 million,
from $10.2 million in 1997 to $15.1 million in 1998. This increase was
attributable primarily to increased demand for the Company's service and support
offerings, particularly its network consulting services, due to an increase in
the number and size of client projects and the addition of several long-term
staffing contracts. Revenues from the Company's Remote Network Management
service offering have not met the Company's expectations. The Company is in the
process of implementing its marketing efforts with respect to such offering,
including the marketing agreement with Pinacor, a division of MicroAge.
Additionally, realization of product sales and service and support
revenues for the MTA project was delayed due to revisions to the project plan
and certain of the equipment to be purchased. Product sales planned for April
1998 were delayed at the request of the MTA pending new manufacturer product
releases anticipated to occur in July 1998, but are currently scheduled for
August 1998. In addition, changes in pilot sites required increased labor to
complete. Such changes and their impact on the project have not yet been
addressed by the MTA. The Company believes such changes are beyond the original
scope of work and an equitable adjustment in the contract amount or terms will
be requested. However, there can be no assurance the MTA will approve, either in
whole or in part, any equitable adjustment in the contract amount or terms
requested by the Company. Accordingly, there can be no assurance that the
Company can complete the project within the contract amount or without incurring
a loss.
During the three months ended June 30, 1998, sales to KPMG Peat
Marwick, LLP and Polo Ralph Lauren, accounted for approximately 16.8% and 12.5%
of the Company's net sales, respectively. There can be no assurance that such
customers will continue to place orders with the Company or engage the Company
to perform services and support at existing levels.
GROSS PROFIT. The Company's gross profit increased by 15.9%, or $1.1
million, from $7.1 million in 1997 to $8.2 million in 1998. Total gross profit
margin increased from 16.9% of net sales in 1997 to 18.2% in 1998 due to the
increase in higher margin service and support revenues as a percentage of net
sales. Gross profit margin attributable to product sales increased from 11.4% in
1997 to 11.8% in 1998 primarily due to the sales mix of higher margin products.
However, the Company expects that downward pricing pressure on products will
continue and there can be no assurance that the Company will be able to sustain
its margins on product sales in the future. Gross profit margin attributable to
services and support revenue decreased from 34.0% in 1997 to 31.0% in 1998. The
decrease in such gross profit margin was attributable primarily to lower
utilization of technical personnel and securing several long-term staffing
contracts during 1997, which typically yield lower gross margins than individual
projects. The
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Company decreased its staff of billable technical personnel from 545 at December
31, 1997 to 527 at June 30, 1998. For a discussion on the Company's reduction in
work force, see "PART II, ITEM 5., OTHER INFORMATION".
SELLING EXPENSES. Selling expenses increased by 27.4%, or $806,000,
from $2.9 million in 1997 to $3.7 million in 1998, increasing from 7.0% to 8.3%
of net sales, respectively. Such increases were primarily attributed to
increased salesperson commissions and other support costs, and the increase in
sales and marketing efforts associated with the Company's service and support
offerings.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative
expenses increased by 49.6 %, or $1.1 million from $ 2.2 million in 1997 to $
3.3 million in 1998, increasing from 5.3% to 7.3 % of net sales, respectively.
Such increases were primarily due to increases in personnel expenses, MIS
implementation costs, depreciation charges, additional leased facilities and
their related costs, corporate insurance premiums, training costs, and
professional fees.
SIX MONTHS ENDED JUNE 30, 1997 COMPARED TO SIX MONTHS ENDED JUNE 30,
1998
NET SALES. Net sales increased by 2.4%, or $2.1 million, from $88.3
million in the first six months of 1997 to $90.4 million in the first six months
of 1998. Product sales decreased by 13.2%, or $9.3 million, from $70.4 million
in the first six months of 1997 to $61.1 million in the first six months of
1998. This decrease in product sales was primarily attributed to lower average
selling prices in 1998 due to continued pricing pressures on hardware
manufacturers and reduced unit volume, and, to a lesser extent, higher customer
product demand during the first quarter 1997. Service and support revenue
increased by 63.3%, or $11.4 million, from $17.9 million in the first six months
of 1997 to $29.3 million in the first six months of 1998. This increase was
attributable primarily to increased demand for the Company's service and support
offerings, particularly its network consulting services, due to an increase in
the number and size of client projects and the addition of several long-term
staffing contracts. Revenues from the Company's Remote Network Management
service offering have not met the Company's expectations. The Company is in the
process of implementing its marketing efforts with respect to such offering,
including the marketing agreement with Pinacor, a division of MicroAge.
Additionally, realization of product sales and service and support
revenues for the MTA project was delayed due to revisions to the project plan
and certain of the equipment to be purchased. Product sales planned for April
1998 were delayed at the request of the MTA pending new manufacturer product
releases anticipated to occur in July 1998, but are currently scheduled for
August 1998. In addition, changes in pilot sites required increased labor to
complete. Such changes and their impact on the project have not yet been
addressed by the MTA. The Company believes such changes are beyond the original
scope of work and an equitable adjustment in the contract amount or terms will
be requested. However, there can be no assurance the MTA will approve, either in
whole or in part, any equitable adjustment in the contract amount or terms
requested by the Company. Accordingly, there can be no assurance that the
Company can complete the project within the contract amount or without incurring
a loss.
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In the first six months of 1998, sales to KPMG Peat Marwick, LLP and
Polo Ralph Lauren accounted for approximately 17.5% and 10.2 % of the Company's
net sales, respectively. There can be no assurance that such customers will
continue to place orders with the Company or engage the Company to perform
services and support at existing levels.
GROSS PROFIT. The Company's gross profit increased by 20.4%, or $2.8
million, from $14.1 million in the first six months of 1997 to $16.9 million in
the first six months of 1998. Total gross profit margin increased from 15.9% of
net sales in the first six months of 1997 to 18.7% in the first six months of
1998 due to the increase in higher margin service and support revenues as a
percentage of net sales. Gross profit margin attributable to product sales
increased from 11.2% in the first six months of 1997 to 12.3% in the first six
months of 1998 primarily due to the sales mix of higher margin products.
However, the Company expects that downward pricing pressure on products will
continue and there can be no assurance that the Company will be able to sustain
its margins on product sales in the future. Gross profit margin attributable to
services and support revenue decreased from 34.4% of services and support
revenue in the first six months of 1997 to 32.0% in the first six months of
1998. The decrease in such gross profit margin was attributable primarily to
lower utilization of technical personnel and securing several long-term staffing
contracts during 1997, which typically yield lower gross margins than individual
projects. The Company decreased its staff of billable technical personnel from
545 at December 31, 1997 to 527 at June 30, 1998. For a discussion on the
Company's reduction in work force, see "PART II, ITEM 5., OTHER INFORMATION".
SELLING EXPENSES. Selling expenses increased by 31.6%, or $1.8 million,
from $5.9 million in the first six months of 1997 to $7.7 million in the first
six months of 1998, and increased from 6.6% to 8.5% of net sales, respectively.
The increases in selling expenses were primarily attributed to increased
salesperson commissions and other support costs, and the increase in sales and
marketing efforts associated with the Company's service and support offerings.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative
expenses increased by 39.0%, or $1.7 million, from $4.2 million in the first six
months of 1997 to $5.9 million in the first six months of 1998, and increased
from 4.8% to 6.5% of net sales, respectively. The increases were primarily due
to increases in personnel expenses, MIS implementation costs, depreciation
charges, additional leased facilities and their related costs, corporate
insurance premiums, training costs, and professional fees.
LIQUIDITY AND CAPITAL RESOURCES
Since its inception, the Company has funded its operations primarily
from cash generated by operations, as well as with funds from borrowings under
the Company's credit facilities and the net proceeds from the Company's public
offerings of its common stock. The Company's cash provided by operations was
approximately $6.4 million for the first six months of 1998 and consisted
primarily of a decrease in accounts receivable of $12.3 million. The decrease in
accounts receivable is primarily attributable to the decrease in net sales and
the timing of collection of accounts receivable. As measured in days sales
outstanding, the Company's accounts receivable decreased from 80 days at
December 31, 1997 to 74 days at June 30, 1998. The Company's cash flow from
operations has been and continues to be affected primarily by the
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timing of collection of accounts receivable, which typically fluctuate in a
manner consistent with net sales.
The Company's working capital was $34.7 million at June 30, 1998
compared to $33.1 million at December 31, 1997.
The Company invested $2.5 million in property and equipment in the
first six months of 1998, primarily related to purchases and upgrades of
computer equipment and software utilized in-house and consultant fees relating
to implementation of the Company's MIS. Although there are no other material
commitments for capital expenditures currently outstanding, the Company
anticipates additional capital expenditures to continue the expansion of the
services component of its business and for the enhancement of its MIS
infrastructure.
Since December 1996, the Company has expended approximately $450,000
for software, $1.5 million for consultant fees, and $380,000 for Company
personnel in implementing the System. The complexity of the project, the lack of
trained and knowledgeable Company technical personnel in the implementation of
the System, and the lack of availability of current Company personnel dedicated
to the project has resulted in significant project delays and increased costs.
In addition, the Company has experienced delays in financial reporting,
processing of vendor invoices and continues to rely on its existing integrated
accounting system. At the present time, the Company is uncertain: (i) whether
and to what extent the System can or will be implemented; (ii) whether an
alternate system adequate for the Company's requirements can or should be
procured; or (iii) of the costs for full implementation of the System or
acquisition and implementation of a new system. There can be no assurance that
the costs to complete such implementation or the costs for an alternate system
will not be material.
Further, the Company's current integrated accounting system is
inadequate for current operations and is not Year 2000 compliant. Although the
Company continues to incur costs and dedicate personnel to implement the System
and other aspects of its MIS, there can be no assurances that the Company will
complete implementation of its MIS, that implementation can be accomplished
without future delays in monthly closings, or that the costs in rectifying such
delays would not be material.
The Company and its independent auditors have identified significant
deficiencies in the design and operation of its internal control structure. The
Company's independent auditors have determined such deficiencies are "reportable
conditions". The Company has implemented and is in the process of implementing
additional policies, procedures and controls to correct these deficiencies. The
Company does not believe that such deficiencies have had a material affect on
the Company's reported financial results. However, there can be no assurance
that such deficiencies will not have a material adverse effect on the Company's
ability to record, process, summarize and/or report its financial information.
The Company purchases certain inventory and equipment through financing
arrangements with Finova Capital Corporation and IBM Credit Corporation. At June
30, 1998, there were outstanding balances of $6.7 million and $3.7 million,
respectively, under such
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arrangements. Obligations under such financing arrangements are collateralized
by substantially all of the assets of the Company. Under the Loan and Security
Agreement entered into on June 30, 1997 with First Union National Bank (the
"Bank"), the Bank entered into an intercreditor agreement with respect to their
relative interests.
On June 30, 1997, the Company and the Bank executed a Loan and Security
Agreement whereby the Bank expanded the Company's credit facility to enable the
Company to borrow, based upon eligible accounts receivable, up to $15.0 million
for short-term working capital purposes. Such facility, which matured on June
30, 1998, included a $2.5 million sublimit for letters of credit and a $5.0
million sublimit for acquisition advances. Under the facility the Company may
borrow, subject to certain post-closing conditions and covenants by the Company,
(i) for working capital purposes at the Bank's prime rate less 0.50% or LIBOR
plus 1.25% and (ii) for acquisitions at the Bank's prime rate less 0.25% or
LIBOR plus 1.50%. The Company's obligations under such facility are
collateralized by a first priority lien on the Company's accounts receivable and
inventory, except for inventory for which the Bank has or will have subordinated
its portion to certain other lenders pursuant to intercreditor agreements. On
June 30, 1998, the Bank agreed to extend the facility through September 30, 1998
on the same terms and conditions. The Company anticipates entering into a new
credit facility prior to the expiration date of the extension. There can be no
assurance the Company will obtain a new credit facility on terms satisfactory to
the Company.
The Company had been notified by the taxing authorities of several
jurisdictions concerning the Company's failure to meet certain reporting and
compliance requirements of such jurisdictions with respect to the Company's
sales tax obligations. The Company commenced a review of its reporting and
compliance procedures relating to its sales tax obligations and determined that
although sales tax liability had been accrued, tax returns and payments had not
been remitted. As a result of such review, the Company has filed sales tax
returns and paid its sales tax obligations to each jurisdiction, including fines
and penalties. Presently, the Company has implemented new control systems and
believes it is in compliance with the applicable sales tax regulations. However,
there can be no assurance that any State will not audit the Company or that if
audited, such audit may identify further non-compliance by the Company resulting
in additional tax payments, fines or penalties. In 1997 the Company had recorded
an amount for payment of unpaid sales taxes and possible fines and penalties.
Although the amount recorded was sufficient to pay such sums, there can be no
assurance that such remaining amount will be sufficient for sums subsequently
assessed by any jurisdiction in the future, if any, as well as any fines or
penalties which may be imposed. In addition, there can be no further assurance
that any such future assessment in excess of the remaining amount recorded will
not be material.
The Company believes that its available funds, together with existing
and anticipated credit facilities and the cash flow expected to be generated
from operations, will be adequate to satisfy its current and planned operations
for at least the next 24 months.
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<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
WAGE AND HOUR. In September 1997, the Company was audited by
the New Jersey Department of Labor, Division of Wage and Hour Compliance (the
"State") regarding the Company's compensatory and overtime payment practices.
Such audit revealed record keeping errors involving daily and weekly totaling of
hours worked on employee time sheets. Subsequent to the audit, a notice of
violation was issued to the Company with a requirement to perform a self-audit
covering the period from September 1995 through September 1997 identifying all
non-exempt employees who were not paid correctly. The Company requested a
pre-hearing conference to clarify the scope of the self-audit. As a result of
the pre-hearing conference, the Company performed a self-audit, identified areas
of non-compliance, and has remitted payment to the State relating to such
identified non-compliance including fines, penalties and administrative fees.
Presently, the Company has implemented new control systems and believes it is in
full compliance with the wage and hour statutes and regulations. However, there
can be no assurance that the State will not audit the Company or that if
audited, such audit will not identify further non-compliance by the Company
resulting in additional wage payments, fines, penalties or administrative fees.
In 1997, the Company recorded an amount for payment of unpaid wages and possible
fines, penalties and administrative fees. Although the amount recorded was
sufficient to pay such sums, there can be no assurance that such remaining
amount will be sufficient for sums subsequently determined to be due, or
assessed by the State in the future, if any. In addition, there can be no
further assurance that any such future assessment in excess of the remaining
amount recorded will not be material.
UNEMPLOYMENT REPORTING. In June of 1998, the Company effected
a reduction in its labor force. As a result of applications made for
unemployment compensation by former employees, the Company learned that
electronic media containing employee wage information required to be filed with
the New Jersey Department of Labor, Division of UI/DI Financing (the "Division")
for the period April 1, 1997 through March 31, 1998 had not been filed. Although
the electronic media has now been filed, the Company has been notified that the
Division intends to fine the Company for its failure to timely file such
information in the approximate amount of $32,000. The Company is contesting the
matter, however no assurance can be made that the Company will be successful in
its appeal.
ALPHANET SOLUTIONS, INC. V. BRUCE FLITCROFT AND ALLIANT
TECHNOLOGIES. On June 30, 1998, Bruce Flitcroft ("Flitcroft"), the Company's
former Corporate Vice President, Technology Services, filed suit in the Superior
Court of New Jersey, Morris County, against the Company and Stan Gang, the
Company's President and CEO, alleging, among other allegations, breach by the
Company of Flitcroft's employment agreement entered into in October 1995.
Flitcroft seeks its rescission as well as rescission and/or reformation of
certain restrictive covenants contained in said employment agreement and damages
for said breach. Flitcroft also alleges that the Company failed to pay certain
bonus obligations arising from the Company's 1990 acquisition of Datar IDS Corp.
and/or pay, pursuant to an oral promise allegedly made by Stan Gang, a one
million-dollar severance payment in lieu of such bonus.
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<PAGE>
On July 16, 1998, without knowledge of the suit filed by
Flitcroft, the Company filed suit against Flitcroft and Alliant Technologies,
Inc. ("Alliant") a company believed to be owned and/or operated by Flitcroft,
alleging among other allegations, breach of Flitcroft's October 1995 employment
agreement, tortious interference with prospective economic advantage and
contractual relations, and conspiracy to usurp corporate assets and
opportunities. The Company seeks to enforce its employment agreement with
Flitcroft including enjoining (i) Flitcroft's employment with Alliant; (ii)
Flitcroft's solicitation of Company employees; (iii) Flitcroft from disclosing
the Company's confidential information; and (iv) Flitcroft from soliciting the
Company's customers. The Company and Stan Gang believe Flitcroft's claims are
without merit and intend to fully and vigorously defend themselves while
pursuing all available remedies they may have. Although the Company has notified
its insurance carriers of the Flitcroft complaint, no response has been received
regarding coverage or defense of all or any portion of the matter at this time.
The Company's Board of Directors authorized the Company to defend Stan Gang and
approved his indemnification by the Company. There can be no assurance that an
outcome favorable to the Company may be achieved or that the Company will be
successful in its efforts to enforce Flitcroft's restrictive covenants contained
in the employment agreement. Accordingly, given the preliminary nature of this
matter, the Company cannot determine at this time whether its resolution or the
expenses to be incurred in this matter will have a material adverse impact on
the Company's financial position, results of operations, or cash flows.
The Company is also involved in various other pending legal proceedings
arising out of the ordinary course of the Company's business. None of these
legal proceedings is expected to have a material adverse effect on the financial
condition of the Company. With respect to these proceedings and the litigation
and claims described in the preceding paragraphs, management of the Company
believes that it expects to prevail, has adequate insurance coverage or has
established appropriate reserves to cover potential liabilities. There can be no
assurance, however, as to the ultimate outcome of any of these matters, and if
all or substantially all of these legal proceedings were to be determined
adversely to the Company, there could be a material adverse effect on the
financial condition of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Shareholders of the Company (the "Meeting") was
held on May 29, 1998.
There were present at the Meeting in person or by proxy shareholders
holding an aggregate of 5,403,436 shares of Common Stock of a total number of
6,269,230 shares issued, outstanding and entitled to vote at the Meeting. The
results of the vote taken at the Meeting with respect to each nominee for
director were as follows:
NOMINEES FOR WITHHELD
-------- --- --------
Stan Gang 5,381,481 21,955
Michael Gang 5,380,481 22,955
Michael R. Bruce 5,381,481 21,955
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Richard S. Miller 5,380,481 22,955
Susan H. Wolford 5,380,481 22,955
In addition, a vote of the shareholders was taken at the Meeting on the
proposal to ratify the appointment of Price Waterhouse LLP, now known as
PricewaterhouseCoopers LLP, as the independent auditors of the Company for the
fiscal year ending December 31, 1998. Of the shares present at the Meeting in
person or by proxy 5,383,166 shares of Common Stock were voted in favor of such
proposal, 13,370 shares of Common Stock were voted against such proposal, 6,900
shares of Common Stock abstained from voting and there were no broker nonvotes.
In addition, a vote of the shareholders was taken at the Meeting on the
proposal to adopt the Employee Stock Purchase Plan of the Company. Of the shares
present at the Meeting in person or by proxy 3,254,288 shares of Common Stock
were voted in favor of such proposal, 64,620 shares of Common Stock were voted
against such proposal, 23,850 shares of Common Stock abstained from voting and
there were 2,060,678 broker nonvotes.
ITEM 5. OTHER INFORMATION.
REDUCTION IN FORCE. In June 1998 the Company underwent a
reduction in force among its technical and administrative personnel.
Approximately 40 personnel were affected resulting in an expected annualized
cost reduction of approximately $2.0 million beginning July 1, 1998.
LEASED FACILITY. The Company and American International
Recovery, Inc. ("AIR"), a subsidiary of American International Group, entered
into a sublease dated May 27, 1998 for approximately 16,038 square feet of
office space at 7 Ridgedale Avenue, Cedar Knolls, NJ (the Company's
headquarters). The lease term extends through September 29, 2000 at a base
rental rate of $15.00 per square foot and upon terms similar to the Company's
existing lease for its headquarters. The Company believes that its current
facilities will be adequate for its needs for the forseeable future, but
continues to evaluate its property needs. The sublease is attached hereto as
exhibit 10.1.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibit.
10.1 Sublease, American International Recovery, Inc. to
AlphaNet Solutions, Inc.
27 Financial Data Schedule
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the quarter for which
this report on Form 10-Q is filed.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AlphaNet Solutions, Inc.
DATE: August 14, 1998 By:/S/ STAN GANG
---------------------------
Stan Gang,
President and Chief
Executive Officer
(Principal Executive
Officer)
DATE: August 14, 1998 By:/S/ ROBERT G. PETOIA
---------------------------
Robert G. Petoia
Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
10.1 Sublease, American International Recovery, Inc. to
AlphaNet Solutions, Inc.
27 Financial Data Schedule
EXHIBIT 10.1
STANDARD FORM
SUBLEASE
This Sublease is made as of the 27 day of May, 1998, by and between
American International Recovery, Inc., a Delaware corporation (herein referred
to as "Sublandlord") and AlphaNet Solutions, Inc., a New Jersey corporation
(hereinafter collectively referred to as "Subtenant") with regard to the
following facts.
RECITALS
A. Sublandlord is the Tenant under that certain Office Lease dated as
of March 14, 1988 (the "Office Lease"), with Sutman Associates, a New Jersey
partnership (the "Landlord"), as amended by that certain Letter Agreement dated
July 12, 1988 (the "Letter Agreement") the First Amendment to Lease dated March
29, 1989 (the "First Amendment") and the Second Amendment to Lease dated June
30, 1995 (the "Second Amendment") between Landlord and Sublandlord (the Office
Lease, Letter Agreement, First Amendment and Second Amendment is referred to
herein collectively as the "Master Lease") (a copy of which Master Lease is
attached hereto as Exhibit A and by this reference made a part hereof)
concerning approximately 16,038 rentable square feet of office space (the
"Premises") located on the first floor of the building (the "Building") located
at 7 Ridgedale Avenue, New Jersey.
B. Subtenant desires to sublease from Sublandlord the Premises
consisting of approximately 16,038 rentable square feet of space (which shall be
hereafter referred to as the "Subleased Premises") more particularly set forth
on Exhibit B, attached hereto, and Sublandlord has agreed to sublease the
Subleased Premises to Subtenant upon the terms, covenants and conditions herein
set forth.
<PAGE>
AGREEMENT
In consideration of the mutual covenants contained herein, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. SUBLEASE Sublandlord hereby subleases and demises to Subtenant and
Subtenant hereby hires and takes from Sublandlord the Subleased Premises.
2. TERM The term of this Sublease (the "Term") shall commence no later
than July 1, 1998 or such earlier date as the parties may agree upon, and shall
end, unless sooner terminated as provided in the Master Lease on September 29,
2000.
3. SUBTENANT'S SHARE Subtenants proportionate share is (25.87%) (16,038
/divided by/ 62,000).
4. SERVICES
4.1 ELECTRIC Subtenant shall pay its proportionate share of
Tenant's electric charges as additional rent on a monthly basis. Subtenant will
pay directly to Landlord any additional expenses incurred for uses of services
outside the normal Building Standard Operation Hours.
4.2 ADDITIONAL SERVICES Subtenant shall pay directly to the
Landlord any additional expenses incurred for use of additional Landlord
services.
5. RENT Subtenant shall pay base rent during the Term of this Sublease
in the amount of Fifteen and 00/100 Dollars ($15.00) per rentable square foot of
the Subleased Premises or Two Hundred Forty Thousand Five Hundred Seventy and
00/100 Dollars ($240,570.00), payable monthly in advance on the first day of a
month in equally monthly installments of Twenty Thousand Forty-seven and 50/100
Dollars ($20,047.50). In the event that the term of this Sublease shall begin or
end on a date which is not the first day of a month, base rent shall be prorated
as of such date Concurrent with Subtenant's execution of this Sublease,
Subtenant shall deliver to Sublandlord the first month's base rent in the amount
of Twenty Thousand Forty-seven and 50/100 Dollars ($20,047.50). In addition,
Subtenant shall be responsible for all telephone charges incurred in connection
with the Subleased Premises during the Term of the Sublease and shall arrange
with the supplier of the same to have charges directly billed to Subtenant.
Concurrently with the signing of the Sublease, Subtenant shall pay the
sum of $20,047.50 determined under Section 6 below to the Sublandlord, which
shall be held as a security deposit. The security deposit shall be refunded in
full to Subtenant within thirty (30) days of the termination of the Sublease,
subject to the terms specified in Paragraph 6 below.
6. SECURITY DEPOSIT Concurrent with the execution of this Sublease, as
stated in Section 5 of this Agreement, Subtenant shall deposit with Sublandlord
a sum equal to Twenty Thousand Forty-seven and 50/100 Dollars ($20,047.50) as
security for the Subtenant's faithful performance of all of the terms and
<PAGE>
conditions of this Sublease including the obligation to pay rent. For so long as
the Security Deposit has not been repaid by Sublandlord, it shall constitute an
account payable by Sublandlord to Subtenant within thirty (30) days after the
termination of this Sublease to the extent, if any, that the Security Deposit
has not been applied by Sublandlord as hereinafter provided. If Subtenant shall
default beyond any applicable notice and cure periods as defined herein with
respect to any term and condition hereunder, then the Security Deposit or any
part hereof may be applied by Sublandlord (but Sublandlord shall not be
obligated to do so) to the actual damages sustained by Sublandlord by reason
thereof. No such application shall be construed as an agreement to limit the
amount of Sublandlord's claim or, as a waiver of any damage or release of any
indebtedness, and Sublandlord's claim not recovered in full from the Security
Deposit. If Sublandlord has so applied all or any part of the Security Deposit,
Sublandlord shall have the right (but not the obligation) at any time thereafter
to demand that Subtenant pay to Sublandlord a sum equal to the amounts so
applied so that Sublandlord will always be in possession of a sum equal to the
amount of the Security Deposit. Subtenant shall make each such remittance within
thirty (30) days following such demand by Sublandlord. Said remittance shall
thereupon constitute a part of the Security Deposit subject to the terms and
provisions hereof. The failure of Subtenant to make any such requested
remittance within such thirty (30) day period, and after applicable notice and
cure period, may be treated by Sublandlord as a failure by Subtenant to make
timely payment of rent and as an event of default.
7. USE Subtenant covenants and agrees to use the Premises in accordance
with the provision of the Master Lease and for no other purpose and otherwise in
accordance with the terms and conditions of the Master Lease and this Sublease.
8. MASTER LEASE As applied to this Sublease, the words "Landlord" and
"Tenant" as used in the Master Lease shall be deemed to refer to Sublandlord and
Subtenant hereunder, respectively. Subtenant and this Sublease shall be subject
in all respects to the terms of, and the rights of the Landlord under, the
Master Lease. Except as otherwise expressly provided in Section 8 hereof, the
covenants, agreements, terms, provisions and conditions of the Master Lease
insofar as they relate to the Subleased Premises and insofar as they are not
inconsistent with the terms of this Sublease are made a part of and incorporated
into this Sublease as if recited herein in full, and the rights and obligations
of the Landlord and the Tenant under the Master Lease shall be deemed the rights
and obligations of Sublandlord and Subtenant respectively hereunder and shall be
binding upon and inure to the benefit of Sublandlord and Subtenant respectively.
As between the parties hereto only, in the event of a conflict between the term
of the Master Lease and the terms of this Sublease, the terms of this Sublease
shall control.
9. OPERATING EXPENSES / REAL ESTATE TAXES Pursuant to Article 7 of the
Master Lease, Subtenant shall pay to Sublandlord operating expenses and real
estate taxes as additional rent on a monthly basis.
10. LANDLORD'S PERFORMANCE UNDER MASTER LEASE
10.1 Subtenant recognizes that Sublandlord is not in a
position to render any of the services or to perform any of the obligations
required of Sublandlord by the terms of this Sublease. Therefore,
notwithstanding anything to the contrary contained in this Sublease, Subtenant
agrees that performance by Sublandlord of its obligations hereunder are
conditional upon due performance by the Landlord of its corresponding
obligations under the Master Lease and Sublandlord shall not be liable to
<PAGE>
Subtenant for any default of the Landlord under the Master Lease. Subtenant
shall not have any claim against Sublandlord by reason of the Landlord's failure
or refusal to comply with any of the provisions of the Master Lease unless such
failure or refusal is a result of Sublandlord's act or failure to act. This
Sublease shall remain in full force and effect notwithstanding the Landlord's
failure or refusal to comply with any such provision of the Master Lease and
Subtenant shall pay the base rent and additional rent and all other charges
provided for herein without any abatement, deduction or setoff whatsoever.
Notwithstanding the foregoing, if Landlord defaults in any of its obligations
under the Master Lease, Subtenant shall be entitled to participate with
Sublandlord in any action undertaken by Sublandlord in the enforcement of
Sublandlord's rights against Landlord. If Sublandlord elects not to take action,
whether legal action or otherwise, for the enforcement of Sublandlord's rights
against Landlord, Subtenant shall have the right to take such action in its own
name and, for that purpose and only to such extent, all the rights of
Sublandlord under the Lease with respect to the Subleased Premises shall be and
are hereby conferred upon and assigned to Subtenant, and Subtenant shall be
subrogated to such rights to the extent they apply to the Subleased Premises.
Subtenant shall protect, defend, indemnify and hold Sublandlord harmless from
all claims, costs and liabilities, including attorney' fees and costs, arising
out of or in connection with any such action by Subtenant. Subtenant covenants
and warrants that it fully understands and agrees to be subject to and abide by
all of the covenants, agreements, terms, provisions and conditions of the Master
Lease, except as modified herein. Furthermore, Subtenant and Sublandlord further
covenant not to take any action or do or perform any act or fail to perform any
act which would result in the failure or breach of any of the covenants,
agreements, terms, provisions or conditions of the Master Lease on the part of
the Tenant thereunder.
10.2 Whenever the consent of Landlord shall be required by, or
Landlord shall fail to perform its obligations under, the Master Lease,
Sublandlord agrees to use its good faith efforts to obtain, at Subtenant's sole
cost and expense, such consent and/or performance on behalf of Subtenant.
10.3 Sublandlord represents and warrants to Subtenant that the Master
Lease is in full force and effect.
11. VARIATIONS FROM MASTER LEASE The following covenants, agreements,
terms, provisions and conditions of the Master Lease are hereby modified or not
incorporated herein:
11.1 Notwithstanding anything to the contrary set forth in the
Master Lease, the base rent payable under this Sublease and the Term of this
Sublease shall be as set forth in Sections 2 and 5, above.
11.2 The parties hereto represent and warrant to each other
that neither party dealt with any broker or finder in connection with the
consummation of this Sublease other than The Krupat Group, Ltd., (the "Broker"),
and each party agrees to indemnify, hold and save the other party harmless from
and against any and all claims for brokerage commissions or finder's fees, other
than to the Broker, arising out of either of their acts in connection with this
Sublease. The provisions of this Section 11.2 shall survive the expiration or
earlier termination of this Sublease.
11.3 Notwithstanding anything contained in the Master Lease to
the contrary, as between Sublandlord and Subtenant only, all insurance proceeds
or condemnation awards received by Sublandlord under the Master Lease shall be
deemed to be the property of Sublandlord.
11.4 Any notice which may or shall be given by either party
hereunder shall be either delivered personally, sent by certified mail, return
receipt requested, or by overnight express delivery, addressed to the party for
whom it is intended at the Subleased Premises (if to the Subtenant), with a copy
to General Counsel at 7 Ridgedale Avenue, Cedar Knolls, NJ 07927 and American
International Realty Corp., 10th Floor, 72 Wall Street, New York, New York
10005, ATTENTION: Legal Department and American International Realty Corp., 16th
Floor, 72 Wall Street, New York, New York 10005, ATTENTION:
<PAGE>
Director of Leasing (if to the Sublandlord), or to such other address as may
have been designated in a notice give in accordance with the provisions of this
Section 11.4.
11.5 All amounts payable hereunder by Subtenant shall be
payable directly to Sublandlord, as follows:
Checks payable to: American International Recovery, Inc.
Checks mailed to: Ms. Cheryl Reeman
American International Realty, Corp.
72 Wall Street - 16th Floor
New York, NY 10005
11.6 The provision of Articles Fifth, Eighth, Ninth, Tenth and
Eleventh of Second Amendment and the provision of Articles Second, Third, Sixth
and Seventh of First Amendment and article 12 and 39.0 of the Master Lease shall
not apply to this Sublease.
11.7 Sublandlord shall deliver and Subtenant shall accept the
Subleased Premises in their presently existing, "as is" condition.
11.8 Subtenant shall have the right, at Subtenant's sole cost
and expense, subject to the prior written approval of Sublandlord and pursuant
to the terms of Article 11 of the Master Lease, to alter and construct
improvements in the Subleased Premises.
11.9 Subtenant shall remove any Subtenant improvements in the
Subleased Premises and restore the Subleased Premises to the same condition
existing on the date of Sublandlord's delivery of the Subleased Premises to
Subtenant upon the expiration of the Term hereof.
11.10 Sublandlord agrees that Subtenant shall have the right
to use the Building parking facilities pursuant to the terms of the Lease, and
is entitle to sixty (60) unreserved spaces.
12. SIGNAGE Subtenant shall coordinate directly with the Landlord for
additional directory signage at Subtenant's sole cost.
13. SECURITY SYSTEM Sublandlord will disconnect the services and remove
the system, prior to Subtenant's occupancy, at no charge to Subtenant.
Sublandlord shall be responsible for and shall promptly repair any damage caused
by such removal.
14. INDEMNITY Subtenant hereby agrees to protect, defend, indemnify and
hold Sublandlord harmless from and against any and all liabilities, claims
expenses, losses and damages, including, without limitation, reasonable
attorneys' fees and disbursements, which may at any time be asserted against
Sublandlord by (a) the Landlord for failure of Subtenant to perform any of the
covenants, agreements, terms, provisions or conditions contained in the Master
Lease which by reason of the provisions of this Sublease Subtenant is obligated
to perform, or (b) any person by reason of Subtenant's use and/or occupancy of
the Subleased Premises or negligent or intentional acts in or about the
Building. The provisions of this Section 12 shall survive the expiration or
earlier termination of the Master Lease and/or this Sublease.
<PAGE>
15. CERTIFICATES Subtenant shall at any time and from time to time as
requested by Sublandlord upon not less than ten (10) days prior written notice,
execute, acknowledge and deliver to Sublandlord a statement in writing
certifying that this Sublease 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, if any) certifying the dates to which
rent and any other charges have been paid and stating whether or not, to the
knowledge of the person signing the certificate, that Sublandlord is not in
default beyond any applicable grace period provided herein in performance of any
of its obligations under this Sublease, and if so, specifying each such fault of
which Subtenant may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by others with whom Sublandlord may
be dealing.
16. ASSIGNMENT OR SUBLETTING Subject further to all of the rights of
the Landlord under the Master Lease and the restrictions contained in the Master
Lease, Subtenant shall not be entitled to assign this Sublease or to sublet all
or any portion of the Subleased Premises without the prior written consent of
Sublandlord, which consent may be withheld by Sublandlord in its sole
discretion.
17. SEVERABILITY If any term or provision of this Sublease or the
application thereof to any person or circumstances shall, to any extent, be
invalid and unenforceable, the remainder of this Sublease or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
or provision of this Sublease shall be valid and be enforced to the fullest
extent permitted by law.
18. ENTIRE AGREEMENT; WAIVER This Sublease contains the entire
agreement between the parties hereto and shall be binding upon and inure to the
benefit of their respective heirs, representatives, successors and permitted
assigns. Any agreement hereinafter made shall be ineffective to change, modify,
waive, release, discharge, terminate or effect an abandonment hereof, in whole
or in part, unless such agreement is in writing and signed by the parties
hereto.
19. CAPTIONS AND DEFINITIONS Captions to the Sections in this Sublease
are included for convenience only are not intended and shall not be deemed to
modify or explain any of the terms of this Sublease.
20. FURTHER ASSURANCES The parties hereto agree that each of them, upon
the request of the other party, shall execute and deliver, in recordable form if
necessary, such further documents, instruments or agreements and shall take such
further action that may be necessary or appropriate to effectuate the purposes
of this Sublease.
21. GOVERNING LAW This Sublease shall be governed by and in all
respects construed in accordance with the internal laws of the State of New
Jersey.
22. CONSENT OF LANDLORD The validity of this Sublease shall be subject
to the Landlord's prior written consent hereto pursuant to the terms of the
Master Lease.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed as of the day and year first above written.
"Sublandlord":
American International Recovery, Inc.
a DelawareCorporation
By: /s/ THOMAS A. SPANO
--------------------------------------
Thomas A. Spano
Its: President
"Subtenant":
AlphaNet Solutions, Inc.
a New Jersey Corporation
By: /s/ STAN GANG
--------------------------------------
Stan Gang, President
Landlord hereby consents to the terms and provisions of the foregoing Sublease.
Sutman Associates
a New Jersey Partnership
By:
--------------------------------------
Its:
<PAGE>
AGREEMENT OF LEASE made the 14th day of March, 1988 between SUTMAN
ASSOCIATES, a New Jersey Limited Partnership, having an office and principal
place of business at 1373 Broad Street, Clifton, New Jersey, hereinafter
referred to as "Landlord"; and AMERICAN INTERNATIONAL RECOVERY, INC., a Delaware
corporation, having an office and principal place of business at 70 Pine Street,
New York, New York, hereinafter referred to as "Tenant".
W I T N E S S E T H:
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Landlord and Tenant agree as follows:
DEFINITIONS
For all purposes of this Lease and all agreements supplemental thereto
or modifying this Lease, the following terms shall have the meaning specified:
"Basic Rent" shall mean One Hundred Fifty-Four Thousand Seven Hundred
Fifty-Two ($154,752.00) Dollars, per annum, payable in equal monthly
installments on the first day of each month during the Term, in advance, in the
amount of Twelve Thousand Eight Hundred Ninety-Six ($12,896.00) Dollars paid at
the office of Landlord, or such other place as Landlord may designate, without
any set-off or deduction whatsoever, except that Tenant shall pay the first
monthly installment simultaneously with the execution hereof, receipt of which
Landlord hereby acknowledges.
"Broker" shall mean Garner-Simson.
"Building" shall mean the building known as Sutton Crossroads, located
at 7 Ridgedale Avenue, Cedar Knolls, New Jersey.
"Commencement Date" shall mean: (i) the date Landlord specifies to
Tenant that the Premises will be substantially completed in accordance with the
provisions of Exhibit B and (ii) the date on which Tenant shall take possession
and occupy the Premises, but in no event later than August 15, 1988. As used
herein, "substantially completed" shall mean that the Premises are fully
completed as to Landlord's building standard items of materials, work and
installations, except for minor items, the incompletion of which will not
unreasonably interfere with Tenant's normal business operations.
As of the date hereof, the Estimated Commencement Date is: July 15,
1988.
In the event the Commencement Date shall fall on a day other than the
first day of a month, then, in such event, the Basic Rent and Additional Rent
payable hereunder shall be apportioned for the number of days remaining in that
month until the last day thereof.
"Rentable Area of the Building" shall mean 62,000 square feet.
"Security Deposit" shall mean None.
"Tenant's Proportionate Share" is 15.65%, which represents the ratio of
the Rentable Area of the Premises to the Rentable Area of the Building.
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"Term" shall mean a period of eighty-four (84) months commencing on the
Commencement Date and terminating on the Termination Date.
"Termination Date" shall mean eighty-four (84) months from the
Commencement Date, or as determined by Article 13 (termination on Sunday or
Building Holidays) or such prior date as of which Landlord shall terminate this
Lease in accordance with its right to do so pursuant to Article 19 hereof,
unless extended pursuant to Tenant exercising its option(s) to renew the Term of
this Lease.
This Lease consists of this Lease Agreement, Exhibits A and B, Rules
and Regulations, Building Maintenance Specifications and Rider 1.
"Additional Rent" shall mean all sums payable by Tenant to Landlord
pursuant to the various articles herein in which said term is used.
"Building Holiday" shall mean President's Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day and
the day after, Christmas Day and New Year's Day as each of said holidays are
celebrated in the state in which the Real Property is located.
"Excuseable Delay" shall mean a delay caused by strike, lockout, act of
God, inability to obtain labor or materials, governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty or any other cause similar
or dissimilar, beyond the reasonable control of either Landlord or Tenant, or
due to the passing of time while waiting for an adjustment of insurance
proceeds.
"Governmental Authority" shall mean the town, village, city, county,
state or federal government, or any agency or quasi-governmental agency, or any
fire insurance rating organization having jurisdiction over the Real Property.
"Parking Spaces" shall mean the parking spaces, if any, dedicated for
Tenant's use, located on the Real Property.
"Premises" shall mean the second floor area cross-hatched on the floor
plan of the Building annexed hereto as Exhibit A and made a part hereof.
Landlord reserves the right, with Tenant's consent, which shall not be
unreasonably withheld, upon sixty (60) days' written notice to Tenant, but
which, in no event can be delivered after ninety (90) days of occupancy by
Tenant, to substitute other space within the Building provided such substitute
space: (i) contains at least the same square footage as the Premises; (ii)
contains similar office and other tenant finish improvements. Landlord shall pay
all reasonable moving expenses of Tenant incidental to such substitution of
space.
"Real Property" shall mean the land upon which the Building is located
and the Building, collectively.
"Rentable Area of the Premises" shall mean the sum of (i) the total
number of square feet contained in the area shown on Exhibit A computed by
measuring from the outside finish of the exterior of the Building wall(s) to the
corridor side of the corridor walls or permanent partitions in the Premises, and
to the center of partitions that separate the Premises from adjoining areas in
the Building; and (ii) Tenant's Proportionate Share of the area of the Building
used for public corridors, lobbies, public toilets, air conditioning rooms,
penthouses, fan rooms, janitor's closets, electrical closets, telephone closets,
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<PAGE>
stairways, elevator shafts, flues, stacks, pipe shafts and vertical ducts with
their enclosing walls. In computing Rentable Area of the Premises and Rentable
Area of the Building, no deduction was made for columns and projections
necessary for the structural integrity of the Building, and the measurements
provided to Landlord by Landlord's architect shall be conclusive and binding
upon the parties hereto.
ARTICLE 1: RENT
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the Premises for the Term.
1.2 Tenant hereby covenants and agrees to pay, when due and without
deduction or set-off, the Basic Rent and all Additional Rent as herein provided.
1.3 Any installment or installments of Basic Rent or Additional Rent
accruing hereunder, and all other sums payable by Tenant hereunder which are not
paid when due, shall bear interest until the same shall be paid at two (2%)
percent above prime as defined by Chase Manhattan Bank.
ARTICLE 2. USE
2.1 The Premises are to be used only for executive, general and
administrative offices and for no other purpose.
2.2 If any governmental license or permit, other than a certificate of
occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the premises, or any part thereof, and if failure to secure such
license or permit would in any way affect Landlord, Tenant, at its expense,
shall duly procure and thereafter maintain such license or permit and submit the
same to inspection by Landlord. Tenant shall, at all times, comply with the
terms and conditions of each such license or permit.
ARTICLE 3. CHANGE OF COMMENCEMENT DATE
3.1 If, for any reason, the Premises are not ready for occupancy on the
Estimated Commencement Date, this Lease shall nevertheless continue in full
force and effect, and Tenant shall have no right to rescind, cancel or terminate
same, nor shall Landlord be liable for damages, if any, sustained by Tenant by
reason of inability to obtain possession thereof on such date. In such event,
Landlord will give Tenant written notice at least thirty (30) days in advance of
the date when Landlord expects the Premises to be ready for occupancy by Tenant,
which date shall be the Commencement Date. Should the Premises not be ready for
occupancy by September 15, 1988, then in that event Tenant shall have the option
to cancel this Lease Agreement by giving Landlord thirty days advanced written
notice of said cancellation.
3.2 If Tenant shall use or occupy all or any part of the Premises for
the conduct of business prior to the Commencement Date, such use or occupancy
shall be deemed to be under all of the terms, covenants and conditions of this
Lease, including the covenant to pay Basic Rent and Additional Rent for the
period from the commencement of said use or occupancy to and including the date
immediately preceding the Commencement Date, without, however, affecting the
Termination Date. The provisions of the foregoing sentence shall not be deemed
to give to Tenant any right to use or occupy all or any part of the Demised
Premises prior to the Commencement Date without the written consent of Landlord.
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<PAGE>
ARTICLE 4. ACCEPTANCE
4.1 When Tenant takes possession of the Premises, Tenant shall be
deemed to have accepted the Premises as being satisfactory and in good condition
as of the date of such possession, unless Tenant gives notice to Landlord to the
contrary within thirty (30) days thereafter.
ARTICLE 5. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
5.1 Tenant shall not do, or permit anything to be done in or to the
Premises, or bring or keep anything therein which will, in any way, increase the
cost of fire or public liability insurance on the Real Property, or invalidate
or conflict with the fire insurance or public liability insurance policies
covering the Real Property, or any Building fixtures or any personal property
kept therein, or obstruct or interfere with the rights of Landlord or of other
tenants, or in any other way injure Landlord or other tenants, or subject
Landlord to any liability for injury to persons or damage to property, or
interfere with the good order of the Building, or conflict with the present or
future laws, rules or regulations of any Governmental Authority. Tenant hereby
indemnifies and will hold Landlord harmless of and from all liability for injury
to persons or damage occurring on the Premises or in the Building whether
occasioned by any act or omission of Tenant, or Tenant's agents, servants,
employees, invitees or licensees. Tenant agrees that any increase in fire
insurance premiums on the Building or contents caused by the occupancy of Tenant
and any expense or cost incurred in consequence of negligence, carelessness or
willful action of Tenant, Tenant's agents, servants, employees, invitees or
licensees, shall be reimbursed to Landlord within ten (10) days of demand
therefor and any such amount shall be deemed Additional Rent under this Lease.
Landlord shall have all the rights and remedies for the collection of same as
are conferred upon Landlord for the collection of the Basic Rent provided to be
paid pursuant to the terms hereof. In the event that any dispute should arise
between Landlord and Tenant concerning insurance rates, a schedule or "make up"
of rates for the Building or the Premises, as the case may be, issued by the
Fire Insurance Rating Organization of New Jersey or other similar body making
rates for fire insurance and extended coverage for the Building and/or Premises,
shall be presumptive evidence of the facts therein stated and of the several
items and changes in the fire insurance rates with extended coverage then
applicable to the Building and/or the Premises.
5.2 Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of a Governmental Authority,
and at its expense shall comply with all laws and requirements of a Governmental
Authorities which shall, with respect to the Premises or the use and occupation
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's use of the Premises, (ii) the
manner of conduct of Tenant's business or operation of its installations,
equipment or other property therein, (iii) any cause or condition created by or
at the instance of Tenant, other than by Landlord's performance of any work for
or on behalf of Tenant, or (iv) a breach of any of Tenant's obligations
hereunder. Furthermore, Tenant need not comply with any such law or requirement
of a Governmental Authority so long as Tenant shall be contesting the validity
thereof, or the applicability thereof to the Premises, in accordance with
paragraph 5.3.
5.3 Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the
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<PAGE>
validity, or applicability to the Premises, of any law or requirement of a
Governmental Authority, and Landlord shall cooperate with Tenant in such
proceedings, provided that (a) Tenant shall defend, indemnify and hold Landlord
harmless from and against all liability, loss or damage which Landlord shall
suffer by reason of such non-compliance or contest, including reasonable
attorney's fees and other expenses reasonably incurred by Landlord; (b) such
non-compliance or contest shall not constitute or result in any violation of any
superior lease or superior mortgage, or if such superior lease and/or superior
mortgage shall permit such non-compliance or contest on condition of the taking
of action or furnishing of security by Landlord, such action shall be taken and
such security shall be furnished at the expense of Tenant; and (c) Tenant shall
keep Landlord advised as to the status of such proceedings.
ARTICLE 6. PERSONAL PROPERTY TAXES
6.1 Tenant agrees to pay all taxes imposed on the personal property of
Tenant, the conduct of its business and its use and occupancy of the Premises.
ARTICLE 7. ADDITIONAL RENT
7.1 Tenant hereby covenants and agrees to pay as Additional Rent the
amounts as set forth below:
7.2 Real Estate Taxes. (a) For the purposes of paragraph 7.2: "Real
Estate Taxes" shall mean the total annual real estate taxes, special and
extraordinary assessments and governmental levies against the Real Property of
which the Premises are a part. "Base Tax Rate" shall mean the assessed valuation
of the Real Property, as finally determined following completion of construction
and issuance of a final certificate of occupancy therefor tor such equivalent
certification if a certificate of occupancy is not used), multiplied by the tax
rate for the Tax Year 1988 ("Base Year"). "Tax Year" shall mean the fiscal year
for which taxes are levied by the Governmental Authority. "Operational Year"
shall mean each calendar year during the Term after the Base Year. "Tenant's
Proportionate Share of Increase" shall mean Tenant's Proportionate Share
multiplied by the increase in Taxes for the Operational Year over the Base Tax
Rate. "Tenant's Projected Share of Increase" shall mean Tenant's Proportionate
Share of Increase for the prior Operational Year divided by twelve (12) and
payable monthly by Tenant to Landlord as Additional Rent. (b) After the
expiration of the Base Year and any Operational Year, Landlord shall furnish
Tenant a written statement of the Taxes incurred for such Base Year or
Operational Year, including any partial year. Within thirty (30) days after
receipt of such statement for any Operational Year setting forth Tenant's
Proportionate Share of Increase, Tenant shall pay same to Landlord as Additional
Rent, subject to the provisions of paragraph 7.2(c) hereof. (c) Commencing with
the first Operational Year after Landlord shall be entitled to receive Tenant's
Proportionate Share of Increase, Tenant shall pay to Landlord as Additional Rent
for the then Operational Year, Tenant's Projected Share of Increase. If the
statement furnished by Landlord to Tenant pursuant to Paragraph 7.2(b) at the
end of the then Operational Year shall indicate that Tenant's Projected Share of
Increase exceeded Tenant's Proportionate Share of Increase, Landlord shall
credit the amount of such excess against Additional Rent next due Landlord
pursuant to the provisions of this Lease. If such statement furnished by
Landlord to Tenant hereunder shall indicate that the Tenant's Proportionate
Share of Increase exceeded Tenant's Projected Share of Increase for the then
Operational Year, Tenant shall forthwith pay the amount of such excess to
Landlord. (d) Landlord may take the benefit of the provisions of any statute or
ordinance permitting any Taxes
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<PAGE>
to be paid over a period of time. (e) lf Landlord shall receive any tax refund
with respect to any Tax Year following the Base Year, Landlord shall deduct from
such tax refund any expenses incurred in obtaining such tax refund, and out of
the remaining balance of such tax refund, Landlord shall credit to Tenant,
against Additional Rent next due Landlord pursuant to the provisions of this
Lease, Tenant's share of such refund utilizing the percentage set forth in the
definition of Tenant's Proportionate Share of Increase. Any expense incurred by
Landlord in contesting the validity or the amount of assessed valuation of the
Real Property or of any Taxes for any Operational Year, to the extent not offset
by a tax refund, shall be included as an item of Taxes for the Operational Year
in which such contest shall be finally determined for the purpose of computing
the Additional Rent due Landlord or any credit due Tenant hereunder. (f) If the
Tax Year for Taxes shall be changed, then an appropriate adjustment shall be
made in the computation of the Additional Rent due to Landlord or any credit due
to Tenant, in accordance with sound accounting principles to effectuate the
change over to any new Tax Year adopted by any taxing authority. (g) If because
of any change in the method of taxation of real estate any other tax or
assessment is imposed upon Landlord or the owner of the land and/or the Building
or upon or with respect to the land and/or the Building or the rents or income
therefrom in substitution for or in lieu of any tax or assessment which would
otherwise be Taxes, such other tax or assessment shall be deemed Taxes for the
purposes herein. (h) If the last year of the Term ends on any day other than the
last day of a Tax Year, any payment due to Landlord or credit due to Tenant by
reason of any increase in Taxes shall be prorated and Tenant covenants to pay
any amount due to Landlord within ten (10) days after being billed therefor and
Landlord covenants to credit any amount due to Tenant, within ten (l0) days
after furnishing its statement pursuant to Article 7.2(b), as the case may be.
7.3 Landlord's Operating Expenses. (a) "Operating Expenses" shall mean
any or all expenses incurred by Landlord in connection with the operation of the
Real Property, including all expenses incurred as a result of Landlord's
compliance with any of its obligations hereunder, other than the work to be
performed by Landlord in accordance with Exhibit "C", and such expenses shall
include but not be limited to: (i) salaries, wages, medical, surgical and
general welfare benefits (including group life insurance) and pension payments
of employees of Landlord engaged in the operation and maintenance of the
Building; (ii) payroll taxes, worker's compensation, uniforms and dry cleaning
of uniforms for the employees referred to in subdivision (i); (iii) the cost of
all charges for oil, gas, electricity (including, but not limited to, fuel cost
adjustments), steam, heat, ventilation, air conditioning and water (including
sewer rental and assessments) furnished to the building (including common areas
thereof) including any taxes on any such utilities, but excluding therefrom the
cost, including taxes thereon, of electric energy furnished directly other
tenants of the building or of electrical energy furnished directly to the
premises for purposes other than for heating and air-conditioning (which costs
shall be borne by Tenant pursuant to the provisions of Article 15 hereof); (iv)
the cost of all charges for rent-loss, casualty, war risk insurance (if
obtainable from the United States government) and of liability insurance for the
building; (v) the cost of all building and cleaning supplies for the common
areas of the building and charges for telephone for the Building; (vi) the cost
of all charges for management, window cleaning and service contracts with
independent contractors for the common areas of the Building; and (vii) legal
and accounting expenses and any other expense or cost, which, in accordance with
generally accepted accounting principles and the standard management practices
for office buildings comparable to the Building, would
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<PAGE>
be considered as an expense of operating, maintaining or repairing the Real
Property. If Landlord shall purchase any item of capital equipment or make any
capital expenditure which has the effect of reducing the expenses which would
otherwise be included in Operating Expenses, then the costs of such capital
equipment or capital expenditure are to be included in Operating Expenses for
the Operational Year in which the costs are incurred and subsequent Operational
Years on a straight-line basis, to the extent that such items are amortized over
such period of time as Landlord reasonably estimates such savings or reductions
in Operating Expenses are expected to equal Landlord's costs for such capital
equipment or capital expenditure, with an interest factor equal to the interest
rate at the time of Landlord's having made said expenditure. If Landlord shall
lease any items of capital equipment designed to result in savings or reductions
in expenses which would otherwise be included in Operating Expenses, then the
rentals and other costs paid pursuant to such leasing shall be included in
operating Expenses for the Operational Year in which they were incurred. If
during all or part of any Operational Year, Landlord shall not furnish any
particular item(s) of work or service (which would otherwise constitute an
Operating Expense hereunder) to portions of the Building due to the fact that
(i) such portions are not occupied or leased, (ii) such items of work or service
is not required or desired by the Tenant of such portion, (iii) such Tenant is
itself obtaining and providing such item of work or service, or (iv) for other
reasons, then, for the purposes of computing Operating Expenses, the amount for
such item and for such period shall be deemed to be increased by an amount equal
to the additional costs and expenses which would reasonably have been incurred
during such period by Landlord if it had at its own expense furnished such item
of work or services to such portion of the Building or such tenant. "Operational
Year" shall mean each calendar year after the Base Year as hereinafter defined.
"Base Year" shall mean calendar year 1988. "Tenant's Proportionate Share of
Increase" shall mean Tenant's Proportionate Share multiplied by the increase in
Operating Expenses for the Operational Year over Operating Expenses in the Base
Year. "Tenant's Project Share of Increase" shall mean Tenant's Proportionate
Share of Increase for the prior Operational Year plus any increases reasonably
anticipated by Landlord in Operating Expenses for the upcoming Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as Additional
Rent. (b) After the expiration of the Base Year and any Operational Year,
Landlord shall furnish Tenant with a written detailed statement of the Operating
Expenses incurred for such Base Year or Operational Year including any partial
year. Within thirty (30) days after receipt of such statement for any
Operational Year setting forth Tenant's Proportionate Share of Increase, Tenant
shall pay same to Landlord as Additional Rent, subject to the provisions of
paragraph 7.3(c) hereof. (c) Commencing with the first Operational Year after
Landlord shall be entitled to receive Tenant's Proportionate Share of Increase,
Tenant shall pay to Landlord as Additional Rent for the then Operational Year,
Tenant's projected Share of Increase. If the statement furnished by Landlord to
Tenant pursuant to paragraph 7.3(c) at the end of the then Operational Year
shall indicate that Tenant's Projected Share of Increase exceeded Tenant's
Proportionate Share of Increase, Landlord shall credit the amount of such excess
against Additional Rent next due Landlord pursuant to the provisions of this
Lease. If such statement furnished by Landlord to Tenant hereunder shall
indicate that Tenant's Proportionate Share of Increase exceeded Tenant's
Projected Share of Increase for the then Operational Year, Tenant shall
forthwith pay the amount of such excess to Landlord. (d) Every notice given by
Landlord pursuant to paragraph 7.3(b) shall be conclusive and binding upon
Tenant unless (i) within twenty (20) days after the receipt of such notice
Tenant shall notify Landlord that it disputes the
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correctness of the notice, specifying the particular aspects in which the notice
is claimed to be incorrect, and (ii) if such dispute shall not have been settled
by agreement, Landlord and Tenant shall submit the dispute to arbitration within
ninety (90) days after receipt of the notice. Pending the determination of such
dispute by agreement or arbitration as aforesaid, Tenant shall within ten (10)
days after receipt of such notice, pay Additional Rent in accordance with
Landlord's notice 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 Tenant the amount of Tenant's overpayment of rents resulting from
compliance with Landlord's statement. (e) Operating Expenses shall not include
the following: (i) all expenses incurred in connection with capital improvements
other than as permitted in 7.3(a), (ii) improvements performed by Landlord for
other tenants, (iii) repairs and replacements occasioned by casualty or
condemnation and paid by insurance proceeds, (iv) any cost that is reimbursed to
Landlord by tenants, or its separately charged to and payable by tenants, (v)
leasing commissions, advertising and other direct expenses of procuring tenants,
including lease concessions, (vi) depreciation, (vii) interest on and
amortization of debt, (viii) interest and penalties for late payment of taxes,
and (ix) wages, salaries and benefits of employees over the rank of building
superintendent except to the extent those employees are directly and
substantially involved in the day to day management and operation of the
Building.
7.4 Any increase or decrease in Additional Rent under this Article 7
shall be prorated for the final year of the Term if such year covers a period of
less than twelve (12) months. In no event shall any adjustment in Tenant's
obligation to pay Additional Rent under this Article 7 result in a decrease in
the Basic Rent payable hereunder. Tenant's obligation to pay Additional Rent and
Landlord's obligation to credit or pay to Tenant any amount referred to in this
Article 7, for the final year of the Term shall survive the Termination Date.
7.5 If, with respect to Operating Expense Escalation, as set forth in
Article 7.3, the Building is not 95% occupied during the Base Year, then the
Operating Expenses incurred with respect to the Base Year shall be adjusted so
as to reflect 95% occupancy throughout the Base Year.
ARTICLE 8. RULES AND REGULATIONS
8.1 Tenant, on behalf of itself and its employees, agents, servants,
invitees and licensees, agrees to comply with the Rules and Requlations with
respect to the Real Property which are set forth at the end of this Lease and
are expressly made a part hereof. Landlord shall have the right to make
reasonable amendments thereto from time to time for the safety, care and
cleanliness of the Real Property, the preservation of good order therein and the
general convenience of all the tenants and Tenant agrees to comply with such
amended Rules and Regulations, after five (5) days written notice thereof from
Landlord. All such amendments shall apply to all tenants in the Building, and
will not materially interfere with the use and enjoyment of the Premises or of
the parking lot by Tenant.
8.2 Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants or conditions in any other lease, as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant or its employees, agents or visitors. However, Landlord shall
not enforce any of the Rules and Regula-
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tions in such manner as to discriminate against Tenant or anyone claiming under
or through Tenant.
ARTICLE 9. LANDLORD'S RIGHT OF ENTRY
9.1 Landlord and Landlord's agents and representatives shall have the
right to enter into or upon the Premises, or any part thereof, at all reasonable
hours for the following purposes: (1) examining the premises, provided there is
no unreasonable interference with the conduct of Tenant's business; (2) making
such repairs or alterations therein as may be necessary in Landlord's sole
judgment for the safety and preservation of the Building; (3) erecting,
maintaining, repairing or replacing wires, cables, conduits, vents or plumbing
equipment running in, to or through the Premises; or (4) showing the Premises to
prospective new tenants during the last year of the Term. However, Landlord
shall give Tenant five (5) days prior written notice before commencing any
non-emergency repair or alteration.
9.2 Landlord may enter upon the premises at any time in case of
emergency without prior notice to Tenant.
9.3 Landlord, in exercising any of its rights under this Article 9,
shall not be deemed guilty of an eviction, partial eviction or disturbance of
Tenant's use or possession of the Premises and shall not be liable to Tenant for
same.
9.4 All work performed by or on behalf of Landlord in or on the
Premises pursuant to this Article 9 shall be performed with as little
inconvenience to Tenant's business as possible, and in such manner as to not
unreasonably interfere therewith.
ARTICLE 10. MAINTENANCE
10.1 MAINTENANCE BY TENANT. Tenant shall take good care of the Premises
throughout the Term and to preserve the same in the condition delivered to
Tenant on the Commencement Date, normal wear and tear and damage by fire or
other casualty not caused by tenant excepted and subject to Article 23. Tenant
further agrees not to injure, overload, deface or commit waste on the premises.
Tenant shall be responsible for all injury or damage of any kind or character to
the Real Property, including the windows, floors, walls, ceilings, lights,
electrical equipment and HVAC equipment, caused by Tenant or by anyone using or
occupying the Premises by, through or under the Tenant. Landlord shall repair
the same and Tenant shall pay the costs incurred therefor to Landlord as
Additional Rent immediately upon demand.
10.2 MAINTENANCE BY LANDLORD. Landlord shall be responsible for and
shall maintain, repair and replace all plumbing (including hot and cold running
water for drinking and sanitary purposes), heating, air conditioning, electrical
and mechanical fixtures (exclusive of (a) starters, ballasts, fluorescent lamps
and (b) electrical and mechanical fixtures installed by Tenant) which shall be
standard for the Building, when required, and maintain and make repairs to the
parking area and the exterior of the Building, except those repairs or
replacements arising from the negligence of Tenant, its agents, servants,
employees, licensees, or invitees, which shall be the sole responsibility of
Tenant. All work and maintenance provided hereunder shall be deemed Operating
Expenses and shall be treated as set forth in Article 7.3 hereof.
ARTICLE 11. ALTERATIONS OR IMPROVEMENTS BY TENANT
11.1 Tenant shall make no changes in or to the Premises of any nature
without Landlord's prior written consent. Subject to the prior written consent
of Landlord, Tenant at
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Tenant's sole expense, may hire contractors approved by Landlord to make
alterations, installations, additions or improvements in or to the Premises
(collectively "Alterations") which are non-structural and which do not affect
utility services, plumbing or electrical lines in or to the Premises or the
Building. Alterations which shall effect or alter (a) the outside appearance or
the strength of the building or of any of its structural parts, (b) any part of
the Building outside of the Premises, or (c) the mechanical, electrical,
sanitary and other service systems of the Building, or increase the usage of
such systems, shall be performed only by the Landlord, at a cost to be mutually
agreed upon between Landlord and Tenant. Tenant shall cause the Alterations to
be performed in compliance with all applicable requirements of insurance bodies
and in good and workmanlike manner, using new materials and equipment at least
equal in quality and class to the original installations in the Building. The
Alterations shall be performed in such manner as not to unreasonably interfere
with or delay and (unless Tenant shall indemnify Landlord therefor to the
latter's reasonable satisfaction) as not to impose any additional expense upon
Landlord in the construction, maintenance or operation of the Building. If any
of Tenant's Alterations shall involve the removal of any fixtures, equipment or
other property in the Premises which are not Tenant's Property (as hereinafter
defined) such fixtures, equipment or other property shall be promptly replaced,
at Tenant's expense, with new fixtures, equipment or other property (as the case
may be) of like utility and at least equal value unless Landlord shall otherwise
expressly consent in writing, and Tenant shall deliver such removed fixtures to
Landlord. All Alterations and all Tenant Improvements shall, upon installation,
become the property of Landlord and shall remain upon and be surrendered with
the Premises, unless Tenant by notice to Landlord no later than thirty (30) days
prior to the Termination Date requests Landlord's consent to remove same. If
Landlord so consents the same shall be removed from the Premises by Tenant prior
to the Termination Date at Tenant's sole expense. Nothing in this Article 11
shall be construed to give Landlord 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 any other Alteration as may be
permitted by Landlord, Tenant shall immediately and at its expense, repair and
restore the Premises to the condition existing prior to such Alteration, taking
care during such removal. Tenant shall repair any damage to the Premises or the
Real Property incurred during such removal. All property permitted or required
to be removed by Tenant at the end of the Term remaining on the Premises after
the Termination Date shall be deemed abandoned and may, at the election of
Landlord, either be retained as Landlord's property or may be removed from the
Premises by Landlord at Tenant's expense.
11.2 Prior to the commencement of any Alteration, Tenant shall at its
sole expense, obtain all required permits, approvals and certificates required
by all Governmental Authorities and upon completion of the Alteration,
certificates of final approval thereof. Tenant shal1 deliver to Landlord
promptly upon its receipt duplicates of same. Tenant shall carry and will cause
Tenant's contractors and subcontractors to carry such workman's compensation,
general liability, personal and property damage insurance as required by law and
in amounts no less than amounts set forth in Article 31 below. Tenant shall
furnish Landlord with reasonably satisfactory evidence that such insurance is in
effect at or before the commencement of the Alterations and, on request, at
reasonable intervals thereafter during the continuance of the Alterations.
11.3 Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all
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notices of violation arising from or otherwise connected with the Alterations
which shall be issued by any Governmental Authority having or asserting
jurisdiction. Tenant shall defend, indemnify and hold Landlord harmless from and
against any and all mechanic's and other liens filed in connection with Tenant's
property, including the liens of any security interest in, conditional sales of,
or chattel mortgages upon, any materials, fixtures or articles so installed in
and constituting part of the Premises and against all costs, expenses and
liabilities incurred in connection with any such lien, security interest,
conditional sale or chattel mortgage or any action or proceeding brought
thereon.
11.4 Tenant agrees that all work performed on behalf of Tenant shall
not be done in a manner which would create any work stoppage, picketing, labor
disruption or dispute or violate Landlord's union contracts affecting the land
and Building, nor interference with the business of Landlord or any tenant or
occupant of the Building.
11.5 Tenant shall pay to Landlord a supervision fee (which shall
include the cost of review of the proposed Alterations) equal to ten (10%) per
cent of the certified cost of completion of the Alterations. Prior to the
commencement of the Alterations, Tenant shall pay to Landlord ten (10%) per cent
of the estimated cost of completion ("Estimated Payment") as Additional Rent.
Within fifteen (15) days after completion of the Alterations, Tenant shall
furnish Landlord with a statement, certified by an officer or a principal of
Tenant to be accurate and true of the total cost of completion of the
Alterations ("Total Cost"). If such certified statement furnished by Tenant
shall indicate that the Estimated Payment exceed ten (10%) per cent of the Total
Cost, Landlord shall credit the amount of such excess against Additional Rent
due Landlord pursuant to the provisions of this Lease. If such certified
statement furnished by Tenant shall indicate that ten (10%) per cent of the
Total Cost exceeded Tenant's Estimated Payment, Tenant shall, simultaneously
with the delivery to Landlord of the certified statement, pay the amount of such
excess to Landlord as Additional Rent.
ARTICLE 12. ASSIGNMENT AND SUBLETTING
12.1 Tenant for itself, its heirs, distributees, successors and
assigns, expressly covenants that it shall not by operation of law or otherwise
assign, mortgage or encumber this Lease, or any part thereof, or permit the
Premises to be sublet or otherwise used by others without the prior written
consent of Landlord in each instance. Any attempt to do so by the Tenant shall
be void. The consent by Landlord to any assignment, mortgage, encumbrance,
subletting or use of the Premises by others, shall not constitute a waiver of
Landlord's right to withhold its consent to any other assignment, mortgage,
encumbrance or use of the Premises by others. Without the prior written consent
of Landlord, this Lease and the interest of Tenant therein or any assignee or
sublessee of Tenant therein, shall not pass by operation of law, and shall not
be subject to garnishment or sale under execution in any suit or proceeding
which may be brought against or by Tenant or any assignee or sublessee of
Tenant.
12.2 Landlord covenants and agrees that it will not unreasonably
withhold its consent to Tenant's assigning or subletting all or a part of the
Premises; provided, however, (i) that Tenant shall not be in default under any
of the terms, covenants, conditions, provisions and agreements of this Lease at
the time of any notice or request for consent under the terms of this Article 12
or at the effective date of such subletting or
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assignment; (ii) that no such subletting or assignment shall be made with a
tenant who shall seek to use any portion of the Premises for occupancy as an
employment agency, governmental department, labor union office, doctor's or
dentist's office, dance or music studio, school or beauty salon; and (iii)
Landlord shall not be deemed to have unreasonably withheld its consent to such
assignment or sublet if "Landlord's Consent Requirements" (as set forth in
Article 40) are not satisfied.
12.3 If Tenant is a corporation, Tenant shall have the privilege,
without the consent of Landlord, to assign its interest in this Lease to any
corporation which is a successor to Tenant either by merger or consolidation or
if said assignee is a wholly owned subsidiary of Tenant. However, no such
assignment shall be valid unless, within ten (lO) days after the execution
thereof, Tenant shall deliver to Landlord (i) a duplicate original instrument of
assignment, in form and substance satisfactory to Landlord, duly executed by the
assignee, in which such assignee shall assume observance and performance of, and
agree to be personally bound by all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed.
12.4 (a) If Tenant requests Landlord's consent to an assignment of this
Lease or a subletting of all or any part of the Premises, Tenant shall submit to
Landlord: (1) the name of the proposed assignee or subtenant; (2) the terms of
the proposed assignment or subletting; (3) the nature of the proposed tenant's
business; and (4) such information as to its financial responsibility and
general reputation as Landlord may reasonably require. (b) Upon the receipt from
Tenant of a request to assign or sublet in conformance with the requirements of
this Article 12 and the information set forth above, Landlord shall have the
option to be exercised in writing within thirty (30) days after such receipt, to
either (1) cancel and terminate this Lease, if the request is to assign this
Lease or to sublet all of the Premises or, if the request is to sublet a portion
of the Premises for the remainder of the Term, to cancel and terminate this
Lease with respect to such portion, in each case as of the date set forth in
Landlord's notice of exercise of such option; or (2) to grant said request. (c)
In the event Landlord shall terminate this Lease with respect to all or a
portion of the Premises, Tenant shall surrender possession of the premises, or
the portion of the Premises which is the subject of the request, as the case may
be, on the date set forth in such notice in accordance with the provisions of
this Lease relating to surrender of the Premises. If the Lease shall be
cancelled as to a portion of the Premises only, the Basic Rent and Additional
Rent payable by tenant hereunder shall be reduced proportionately according to
the ratio that the number of rentable square feet in the portion of space
surrendered bears to the square feet in the Rentable Area of the Premises. (d)
In the event that Landlord shall consent to a sublease or assignment pursuant to
the request from Tenant, Tenant shall cause to be executed by its assignee or
subtenant an agreement to perform faithfully and to assume and be bound by all
of the terms, covenants, conditions provisions and agreements of this Lease for
the period covered by the assignment or sublease and to the extent of the space
sublet or assigned. An executed copy of each sublease or assignment and
assumption of performance by the sublessee or assignee, on Landlord's standard
form, shall be delivered to Landlord within five (5) days prior to the
commencement of occupancy set forth in such assignment or sublease. No such
assignment or sublease shall be binding on Landlord until Landlord has received
such copies as required herein.
12.5 No assignment or sublet, regardless of whether Landlord shall have
consented thereto, shall release or relieve Tenant from its obligations to fully
perform all of the terms,
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covenants and conditions of this Lease on its part to be performed.
ARTICLE 13. SURRENDER
13.1 Upon the expiration of the Term or prior termination of this
Lease, Tenant shall peaceably and quietly quit and surrender to Landlord the
Premises, broom clean, in as good condition as they were on the Commencement
Date ordinary wear and tear, repairs and replacements by Landlord, loss by fire,
casualty and other causes beyond Tenant's control, and Alterations, additions
and improvements permitted hereunder, excepted. Tenant's obligation to observe
or perform this covenant shall survive the Termination Date or prior expiration
of the Term. If the Termination Date falls on a Sunday or a Building Holiday,
this Lease shall expire at 12 noon on the business day first preceding said
date.
ARTICLE 14. HOLDING OVER
14.1 If Tenant holds possession of the Premises beyond the Termination
Date or prior expiration of the Term, Tenant shall become a tenant from
month-to-month at 150% of the Basic Rent and Additional Rent payable hereunder
and upon all other terms and conditions of this Lease, and shall continue to be
such month-to-month tenant until such tenancy shall be terminated by Landlord
and such termination shall be effective not later than ten (10) days following
Landlord's notice of the termination to Tenant. Nothing contained in this Lease
shall be construed as a consent by Landlord to the occupancy or possession by
Tenant of the Premises beyond the Termination Date or prior expiration of the
Term, and Landlord, upon said Termination Date or prior expiration of the Term
shall be entitled, among other remedies, to the benefit of all legal remedies
that now may be in force or may be hereafter enacted relating to the speedy
repossession of the Premises.
ARTICLE 15. LANDLORD'S SERVICES
15.1 Landlord shall furnish to Tenant the services set forth in this
Lease, the Rules and Regulations and the Building Maintenance Specifications
annexed hereto as services which are covered by the Basic Rent, subject to the
reimbursement of provisions of Article 7 hereof.
15.2 (a) Air heating and air cooling shall be furnished only between
the hours of 8:00 a.m. and 6:00 p.m., Mondays through Fridays, Saturdays 8:00
a.m. until 1:00 p.m., Sundays and Building Holidays excluded. Air cooling shall
be provided only from April 1st through October 15th, and then only when weather
conditions require. (b) If Tenant shall request the use of air cooling (during
the periods when such is available), ventilating and/or heat at any times other
than the hours in this Lease provided for such service, Landlord shall furnish
such to Tenant provided (i) that Tenant pays to Landlord, as Additional Rent, a
special overtime charge as set forth in paragraph 15.5 and (ii) that Tenant's
request shall be received by Landlord by 1:00 p.m. of the day on which
after-hours service is required (and by 3:00 p.m. of the day preceding any
requested before-hours service).
15.3 ELECTRICITY. (a) Throughout the Term, Landlord agrees to provide
electricity to the Premises (not exceeding the present electrical capacity at
the Premises), upon the following terms and conditions: (i) Tenant shall pay for
such electricity as Additional Rent as provided by this Section 15.3; (ii)
Landlord shall not be liable in any way to Tenant for any loss, damage or
expense which tenant may sustain or incur as a result
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of any failure, defect or change in the quantity or character of electricity
furnished to the Premises or if such quantity or character of electricity
furnished to the Premises is no longer available or suitable for Tenant's
requirements or due to any cessation, diminution or interruption of the supply
thereof; (iii) Tenant agrees that an independent electrical engineering
consultant selected by Landlord and reasonably accepted to Tenant shall make a
survey of the electric power demand of the electric lighting fixtures and the
electric equipment of Tenant used in the Premises to determine the average
monthly electric consumption thereof. The findings of said consultant as to the
average monthly electric consumption of Tenant shall be conclusive and binding
on the parties hereto. After said consultant has submitted its report, Tenant
shall pay to Landlord, within ten (10) days after demand therefor by Landlord,
the amount determined by said consultant as owing from the Commencement Date and
during the months in which said survey was being conducted and, thereafter, on
the first day of every month, in advance, the amount set forth as the monthly
consumption in said report. Landlord shall have the right at any time during the
term of this Lease, at Tenant's expense, to cause the Premises to be
re-surveyed. In the event that such re-survey shall indicate increased or
decreased electrical consumption from that established by the prior survey,
there shall be an appropriate adjustment in the amount paid by Tenant to
Landlord for Tenant's electrical consumption in accordance with the results of
the new survey, as well as an adjustment retroactive to the date of Tenant's
increase or decrease in electrical consumption, as established by the prior
survey, but in no event more than one (1) year retroactive adjustment. Said
amounts shall be treated as Additional Rent due hereunder; (iv) in the event
that there shall be an increase or decrease in the rate schedule of the public
utility for the supply of electric energy to the Building or the imposition of
any tax with respect to such electric energy or increase in such tax following
the Commencement Date, the Additional Rent payable hereunder shall be equitably
adjusted to reflect the resulting increase, decrease or tax; (v) Landlord shall,
at Tenant's cost and expense, replace all light bulbs, fluorescent lamps,
non-building standard lamps and bulbs, and all ballasts used by Tenant in the
Premises. (b) Tenant covenants that its use of electricity in the Premises shall
be limited to and for the operation of (1) the building standard lighting, and
(2) electric typewriters, calculators, copying machines and other small office
machines. The use of large copying machines and computers is specifically
excluded by this paragraph and shall require the electrical survey as set forth
in paragraph 15.3(a). (c) Tenant shall make no alteration to the existing
electrical equipment or connect any fixtures, appliances or equipment in
addition to the equipment permitted in paragraph 15.3(b) above without the prior
written consent of Landlord in each instance. Should Landlord grant such
consent, all additional risers or other equipment required therefor shall be
provided by Landlord and the cost thereof shall be paid by Tenant upon
Landlord's demand. As a condition to granting such consent, Landlord shall
require an increase in the Additional Rent by an amount which will reflect the
cost of the additional equipment and service to be furnished by Landlord. If
Landlord and Tenant agree to such increase the Additional Rent increase shall be
determined by an independent electrical engineer, to be selected by Landlord and
whose services shall be paid for by Tenant. (d) Landlord reserves the right to
discontinue furnishing electric energy to Tenant at any time upon not less than
one hundred twenty (120) days written notice to Tenant. If Landlord exercises
such right of termination, this Lease shall continue in full force and effect
and shall be unaffected thereby, except only that, from and after the effective
date of such termination, Landlord shall not be obliged to furnish electric
energy to Tenant and the Additional Rent shall be reduced by a sum per annum
equal to the
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amount certified by an independent electrical rate consultant as the cost of
such electricity to Landlord. If Landlord so discontinues furnishing electric
energy to Tenant, Tenant shall arrange to obtain electric energy directly from
the public utility company furnishing electric energy to the Building, Tenant
may obtain such electric energy by means of the then-existing Building system
feeders, risers and wiring to the extent that the same are available, suitable
and safe for such purposes. All meters and additional panel boards, feeders,
risers, wiring and other conductors and equipment which may be required to
obtain electric energy from the public utility company shall be installed and
maintained by Tenant at its sole expense. (e) Landlord shall not be liable in
the event of any interruption in the supply of electricity, and Tenant agrees
that such supply may be interrupted for inspection, repairs, replacement and in
emergencies.
15.4 The failure of Landlord to furnish any service hereunder shall not
be construed as a constructive eviction of Tenant and shall not excuse Tenant
from failing to perform any of its obligations hereunder and shall not give
Tenant any claim against Landlord for damages for failure to furnish such
service.
15.5 Tenant's use of additional air cooling ventilation and/or heat
pursuant to Article 15.2 shall be determined by the following calculation: (i)
The Consumer Price Index of the United States Bureau of Labor Statistics for
Urban Wage Earners and Clerical Workers for New York, Northeastern New Jersey
(on the 1967 equals 100 standard) is hereafter called the "Index" and the level
of such Index for the month in which the Commencement Date occurs, is hereafter
called the "Base Level". (ii) The level of such Index for the month of the extra
HVAC consumption is hereinafter called "Comparison Level". (iii) If the
Comparison Level shall exceed the Base Level, the excess shall constitute the
"Percentage of Increase". (iv) The sum of Twenty-Five Dollars ($25.00) shall be
multiplied by the Percentage of Increase and the resulting amount shall be
multiplied by the number of hours of HVAC consumption paid by Tenant to Landlord
within thirty (30) days of receipt of an itemized bill for Tenant's additional
usage pursuant to 15.2(b). The sum of Twenty-Five Dollars ($25.00) shall be
modified, from time to time, as the rates, charges and/or fees charged by the
public utility company serving the Building shall be modified or increased. (v)
Upon default in payment of the additional rent set forth in 15.2(b), Landlord
shall have the same rights and remedies for the collection thereof as and for
unpaid rent. (vi) If the compilation and/or publication of such Index shall be
transferred to any other governmental department or bureau or agency or shall be
discontinued, or the method of calculation revised, the Landlord and Tenant
shall, by agreement, fix an alternate method of computing further additional
rent, but if they cannot agree, the matter shall be settled by arbitration
before the American Arbitration Association, Morris County, New Jersey, in
accordance with its rules and procedures then obtaining, provided that Tenant
shall continue to pay the rent and any additional rent reserved under the Lease,
pending the final determination by the arbitrators.
15.6 If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory and drinking purposes, Landlord may install a
water meter or estimate Tenant's usage based upon an independent survey and
thereby measure Tenant's consumption of water for all purposes. Tenant shall pay
to Landlord the cost of any such meter and any such installation equipment in
good working order and repair, at Tenant's cost and expense. Tenant agrees to
pay for water consumed as shown on said meter and sewer charges thereon, as and
when bills are rendered.
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ARTICLE 16. QUIET ENJOYMENT
16.1 Landlord covenants and agrees that, upon the performance by Tenant
of all of the covenants, agreements and provisions hereof on Tenant's part to be
kept and performed, Tenant shall have, hold and enjoy the Premises, subject and
subordinate to the rights set forth in Article 21, free from any interference
whatsoever by, from or through the Landlord, provided, however, that no
diminution or abatement of the Basic Rent, Additional Rent or other payment to
Landlord shall be claimed by or allowed to Tenant for inconvenience or
discomfort arising from the making of any repairs or improvements to the
Premises or the Real Property, nor for any space taken to comply with any law,
ordinance or order of any Governmental Authority, or the performance by Landlord
of its other obligations under this Lease, except as provided for herein;
provided, however, that no eviction of Tenant by reason of paramount title, the
foreclosure of any mortgage now or hereafter affecting the Premises or by reason
of any termination of any ground or underlying lease to which this lease is
subject and subordinate, whether such termination is by operation of law, by
agreement or otherwise, shall be construed as a breach of this covenant nor
shall any action by reason thereof brought against Landlord, and provided
further that this covenant shall bind and be enforceable against Landlord or any
successor to Landlord's interest, subject to the terms hereof, only so long as
Landlord or any successor to Landlord's interest, is in possession and is
collecting rent from Tenant but not thereafter.
ARTICLE 17: AIR AND LIGHT
17.1 This Lease does not grant any rights to light and air.
ARTICLE 18: DEFAULT
18.1 Each of the following, whether occurring before or after the
Commencement Date, shall be deemed a default by Tenant and a breach of this
Lease (an "Event of Default"): (a) the filing of a petition by or against Tenant
for adjudication as a bankrupt, or for reorganization, or for arrangement under
any bankruptcy act; (b) the commencement of any action or proceeding for the
dissolution or liquidation of Tenant, whether instituted by or against Tenant,
or for the appointment of a fiscal agent, receiver or trustee of the property of
Tenant under any state of federal statute for relief of debtors; (c) the making
by Tenant of an assignment for the benefit of creditors; (d) the filing of a tax
lien or a mechanic's lien against any property of Tenant which is not discharged
of record or bonded within sixty (60) days of Tenant's having received notice of
the same; (e) Tenant's causing or permitting the Premises to be abandoned by
Tenant for a period in excess of ten (10) days; (f) failure by Tenant to pay
Landlord when due the Basic Rent, the Additional Rent herein reserved, or any
other sum by the time required by the terms of this Lease; (h) a failure by
Tenant in the performance of any other term, covenant, agreement or condition of
this Lease on the part of Tenant to be performed.
18.2 Notwithstanding any provision in this Lease permitting Tenant to
cure any Event of Default within a specified period of time, if Tenant shall
Commit an Event of Default (i) in the timely payment of Rent or Additional Rent,
and such Event of Default shall continue to be repeated for two (2) consecutive
months or for a total of four (4) months in any period of twelve (12) months, or
(ii) in the performance of any particular term, condition or covenant of this
Lease more than two times in any period of six (6) months, then, notwithstanding
that such Events of Default shall have each been cured within the period after
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notice, if any, as provided in this lease, any further similar default shall be
deemed to be deliberate and Landlord thereafter may serve a written five (5) day
notice of termination as provided in Article 19 of this Lease to Tenant without
affording to Tenant an opportunity to cure such further Event of Default.
ARTICLE 19: LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
19.1 (a) Upon the occurrence of an Event of Default by Tenant,
Landlord, upon failure of Tenant to cure a default in the payment of Basic Rent,
Additional Rent or any other sum of money due to Landlord hereunder within five
(5) days after notice thereof from Landlord or to cure or diligently commence to
cure any other Event of Default within fifteen (15) days after notice thereof
from Landlord, may immediately or at any time thereafter, without further notice
to Tenant: (i) enter upon the Premises as agent for Tenant, by legal entry,
with or without terminating this Lease and do any and all acts as Landlord may
deem necessary, proper or convenient to curing such Event of Default, for the
account of and at the expense of Tenant, and Tenant agrees to pay Landlord, upon
demand, all damages and/or expenses incurred by Landlord in so doing; (ii)
Landlord shall have the right to terminate this Lease and Tenant's right to
possession of the Premises and take possession of the Premises and remove
Tenant, any occupant and any property therefrom, and distrain upon and sell any
such property, using any legal means, without being guilty of trespass and
without relinquishing any rights of Landlord against Tenant; or (iii) Landlord
shall have the right to accelerate the payment of the Basic Rent and Additional
Rent for the unexpired portion of the Term (together with any extension period
to which Tenant is then bound to exercise of a right of renewal or otherwise)
and to recover from Tenant the amount herein covenanted to be paid as Basic Rent
and Additional Rent and not then paid (including all accelerated amounts). (b)
Landlord shall be entitled to recover damages from Tenant in an amount equal to
the amount herein covenanted to be paid as Basic Rent and Additional Rent,
together with: (i) all expenses of any proceedings (including, but not limited
to, legal expenses and reasonable attorney's fees) which may be necessary in
order for Landlord to recover possession of the Premises; and (ii) the expenses
of re-renting the Premises, including, but not limited to, any commissions paid
to any real estate broker, advertising expenses and the costs of such
alterations, repairs, replacements and decoration or re-decoration as Landlord
in its sole judgment considers advisable and necessary for the purpose of
re-renting the Premises; provided, however, that there shall be credited against
the amount of such damages all amounts received by Landlord from such re-renting
of the Premises. Landlord shall in no event be liable in any way whatsoever for
failure to collect the rent thereof under such re-renting.
19.2 No act or thing done by Landlord shall be deemed to be an
acceptance of Tenant's surrender of the Premises, unless Landlord should execute
a written agreement of surrender with Tenant. Tenant's liability hereunder shall
not be terminated by the execution of a new lease of the Premises by Landlord.
Tenant agrees to pay to Landlord upon demand, the amount of damages herein
provided after the amount of such damages for any month shall have been
ascertained; provided, however, that any expenses incurred by Landlord shall be
deemed to be a part of the damages for the month in which they were incurred.
Separate actions may be maintained each month by Landlord against Tenant to
recover the damages then due, without waiting until the end of the Term to
determine the aggregate amount of such damages. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws
in the event of the eviction of Tenant or Tenant being dispossessed for any
cause, or in the event of Landlord obtaining possession of the Premises by
reason
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of the violation by Tenant of any of the covenants or conditions of this Lease.
19.3 Landlord may retain, on account of its damages, any Basic Rent,
Additional Rent, Security Deposit or monies received by it from Tenant or others
on behalf of Tenant.
19.4 DELETED.
19.5 In the event that Tenant is in arrears in payment of Basic Rent or
Additional Rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall credited.
19.6 In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall have the right to obtain an
injunction against Tenant with respect to any breach or threatened breach.
ARTICLE 20: LANDLORD'S REMEDIES CUMULATIVE; EXPENSES
20.1 All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by this
Lease, in equity or at law. For the purposes of any suit brought or based
hereon, this Lease may, at the election of Landlord, be construed to be a
divisible contract, to the end that successive actions may be maintained on this
Lease as successive periodic sums which mature hereunder.
20.2 Tenant shall pay, upon demand, all of Landlord's costs, charges
and expenses, including the reasonable fees of counsel, agents and others
retained by Landlord, incurred in enforcing Tenant's obligations hereunder.
ARTICLE 21: SUBORDINATION AND ESTOPPEL
21.1 Tenant agrees that this Lease is subject and subordinate to all
ground or underlying leases and to the lien of any mortgages or deed of trust
now on or which at any time may be made a lien upon the Real Property, and to
all advances made or hereafter to be made upon the security thereof. This
subordination provision shall be self operative and no further instrument of
subordination shall be required, provided, however, that Tenant agrees to
execute and deliver, upon request, such further instrument or instruments
confirming this subordination as shall be desired by Landlord or by any
mortgagee or proposed mortgagee of the Real Property.Tenant further agrees that
at the option of the holder of any mortgage or of the trustee under any deed of
trust securing the Real Property, this Lease may be made superior to said
mortgage or deed of trust by the insertion therein of a declaration that this
Lease is superior.
21.2 Tenant agrees at any time and from time to time upon not less than
ten (10) days prior written request by Landlord, to execute, acknowledge and
deliver to Landlord, or to any party designated by Landlord, a statement in
writing certifying (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the Lease is in full force
and effect as modified) and stating the modifications, (b) the dates to which
the Basic Rent and Additional Rent have been paid, (c) that there are no Events
of Default or events which with the passage of time and failure to cure would
become Events of Default (or stating such as may exist), and (d) that there are
no breaches by Landlord of its covenants and obliga-
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tions to Tenant (or stating such as may exist), it being intended that any such
statement delivered pursuant to this Section 21.2 may be relied upon by a
prospective purchaser of Landlord's interest or a mortgagee of Landlord's
interest or assignee of any mortgage upon Landlord's interest in the Real
Property
ARTICLE 22: DAMAGE BY FIRE OR OTHER CASUALTY
22.1 If the Premises, or any part thereof, shall be damaged by fire or
other casualty not arising from the fault or negligence of Tenant or its
servants, agents, employees, invitees or licensees: (i) Except as otherwise
provided in subsection (ii) hereof, the damage shall be repaired by and at the
expense of Landlord and the Basic Rent and Additional Rent until such repairs
shall be made shall be equitably abated according to the part of the Premises
which is usable by Tenant. Landlord agrees, at its expense, to repair promptly
any damage to the Premises, except that Tenant agrees to repair or replace its
own furniture, furnishings and equipment. No penalty shall accrue due to an
Excusable Delay. (iii) If the Premises are totally damaged or are rendered
wholly untenantable by fire or other casualty, or if Landlord's architect
certifies that it cannot be repaired within ninety (90) days of the casualty or
if Landlord shall decide not to restore or repair the same, or shall decide to
demolish the building or to rebuild it, then Landlord shall, within ninety (90)
days after such fire or other casualty, give Tenant a notice of such decision,
and thereupon the Term shall expire ten (10) days after such notice is given,
and Tenant shall vacate the Premises and surrender the same to Landlord. (iv) If
Landlord fails to complete the repair and restoration of the Premises within six
(6) months from the date of the casualty (subject to Excusable Delays) then
Tenant shall have the right to cancel and terminate this Lease upon the delivery
of a notice to Landlord delivered within fifteen (15) days after the expiration
of the aforesaid six (6) month period. (v) Landlord agrees that it shall
diligently pursue all repair and restoration work required on its part to be
completed hereunder.
22.2 Notwithstanding any of the foregoing provisions of this Article,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction of the Premises or
the Building by fire or other cause, by reason of some action or inaction on the
part of Tenant or any of its employees, agents or contractors, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement of Tenant's rents.
22.3 If the Premises and/or access thereto become partially or totally
damaged or destroyed by any casualty not insured against, then Landlord shall
have the right to terminate this Lease upon giving the Tenant ten (10) days
notice and upon the expiration of said ten (10) day notice period this Lease
shall terminate as if such termination date were the Termination Date.
ARTICLE 23: MUTUAL WAIVER OF SUBROGATION
23.1 Landlord hereby waives any and all rights of recovery against
Tenant for or arising out of damage to or destruction of the Premises or the
Real Property and any other property of Landlord from causes then insured under
standard fire and extended coverage insurance policies or endorsements to the
extent that its insurance policies then in effect permit such waiver, and Tenant
hereby waives any and all rights of recovery against Landlord for or arising out
of damage to or destruction of the Premises or the Real Property and any
property of Tenant
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from causes then insured under standard fire and extended coverage insurance
policies to the extent that its insurance policies then in effect permit such
waiver. If at any time during the Term any insurance carrier which shall have
issued a policy to either of the parties covering the Real Property, the
Premises or any of the property of Tenant, shall refuse to consent to the waiver
of the right of recovery with respect to any loss payable under such policy, or
if such carrier shall consent to such waiver only upon the payment of an
additional premium (unless such additional premium is voluntarily paid by one of
the parties hereto), or shall cancel a consent previously given, or shall cancel
or threaten to cancel any policy previously issued and then in full force and
effect, then in any such event, the waiver in this Article 23 shall thereupon be
of no further force and effect as to the loss, damage or destruction covered by
such policy except as hereinafter provided. If, however, at any time thereafter
such consent shall be obtained therefor from any existing or any substitute
insurance carrier, the waiver hereinabove provided for shall again become
effective.
ARTICLE 24: CONDEMNATION
24.1 If the Premises shall be acquired or condemned by eminent domain
proceedings, or by giving of a deed in lieu thereof, then and in that event, the
Term shall cease and the Lease shall terminate from the date of title-vesting
pursuant to such proceeding or agreement and in that event, all Basic Rent and
Additional Rent due hereunder shall be apportioned as of that date. If only a
portion of the Premises or the Building shall be so acquired or condemned, this
Lease shall cease and terminate at Landlord's option, and if such option is not
exercised by Landlord, an equitable adjustment of the Basic Rent and Additional
Rent payable by Tenant for the remaining portion of the Premises shall be made.
In the event of a termination under this Article 24.1, Tenant shall have no
claim against Landlord for the value of any unexpired Term and Tenant shall have
no claim against Landlord, other than for the adjustment of the Basic Rent and
Additional Rent as hereinbefore mentioned, or be entitled to any portion of any
amount that may be awarded as damages or paid as a result of such proceedings or
as the result of any agreement made by the condemning authority with Landlord;
except that, and provided that such is not contrary to the prior provisions of
this sentence, Tenant shall have all rights, in law or equity, for protecting,
settling and recovering from the condemning authority all damages, expenses or
losses resulting directly from the exercising of the power of condemnation or
eminent domain upon the Premises.
ARTICLE 25: CHANGES SURROUNDING BUILDING
25.1 This Lease shall not be affected or impaired by any change in any
sidewalk, alley or street adjacent to or around the building, except as provided
in Article 24.
25.2 All walls, windows and doors bounding the Premises (including
exterior building walls, core corridor walls and doors and any core corridor
entrance), except the inside surfaces thereof; any terraces or roofs adjacent to
the Premises, and any space in or adjacent to the Premises used for shafts,
stacks, pipes, conduits, fan room, ducts, electric or other utilities, sinks or
other building facilities, and the use thereof, as well as access thereto
through the Premises for the purposes of operation, maintenance, decoration and
repair are reserved to Landlord.
25.3 Tenant shall permit Landlord to install, use and maintain pipes,
ducts and conduit within the demising walls, bearing columns and ceilings of the
Premises.
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ARTICLE 26: NOTICES
26.1 Notices by either party to the other shall be in writing and shall
be sent by registered or certified mail addressed to Landlord or Tenant at their
respective addresses hereinabove set forth, or to such other address as either
party shall hereafter designate by notice as aforesaid. All notices properly
addressed shall be deemed served seven (7) days after the date of mailing,
except that notice of change of address shall not be deemed served until
received by the addressee.
ARTICLE 27: NO WAIVER
27.1 No waiver by Landlord of any breach by Tenant of any of the terms,
covenants, agreements or conditions of this Lease shall be deemed to constitute
a waiver of any succeeding breach thereof, or a waiver of any breach of any of
the terms, covenants, agreements and conditions herein contained.
27.2 No employee of Landlord or of Landlord's agents shall have any
authority to accept the keys of the Premises prior to the Termination Date and
the delivery of keys to any employee of Landlord or Landlord's agents shall not
operate as an acceptance of a termination of this Lease or an acceptance of a
surrender of the Premises.
27.3 The receipt by Landlord of the Basic Rent and Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Basic Rent or a lesser amount of the Additional Rent
then due shall be deemed to be other than on account of the earliest stipulated
amount then due, nor shall any endorsement or statement on any check or any
letter or other instrument accompanying any check or payment as Basic Rent or
Additional Rent be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Basic Rent or Additional Rent or pursue any other remedy
provided in this Lease.
27.4 The failure of Landlord to enforce any of the Rules or Regulations
as may be set by Landlord from time to time against Tenant or against any other
tenant in the Building shall not be deemed a waiver of any such Rule or
Regulation.
ARTICLE 28: LANDLORD'S RESERVED RIGHTS
28.1 (a) Landlord reserves the following rights: (i) If during or prior
to the last ninety (90) days of the Term Tenant vacates the premises, to
decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy and, (ii) To have pass keys to the Premises. (b) Landlord may enter
upon the Premises and may exercise either of the foregoing rights hereby
reserved without being deemed to have caused an eviction or disturbance of
Tenant's use and possession of the Premises and without being liable in any
manner to Tenant. All parts (except surfaces facing the interior of the
Premises) of all walls, windows and doors bounding the Premises (including
exterior Building walls, core corridor walls, doors and entrances), all
balconies, terraces and roofs adjacent to the Premises, all space in or adjacent
to the Premises used for shafts, stacks, stairways, chutes, pipes, conduits,
ducts, fan rooms, heating, air conditioning, plumbing, electrical and other
mechanical facilities, service closets and other Building facilities, and the
use hereof, as well as access thereto through the Premises for the purposes of
operation, maintenance, alteration and repair, are hereby reserved to Landlord.
Landlord also reserves the right at any time to change the arrangement or
location of
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entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
and other public parts of the Building, provided any such change does not
permanently and unreasonably obstruct Tenant's access to the Premises. Nothing
contained in this Article shall impose any obligation upon Landlord with respect
to the operation, maintenance, alteration or repair of the Demised Premises or
the Building.
ARTICLE 29: LANDLORD'S LIABILITY
29.1 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of Tenant's property or of
property of any other person, irrespective of the cause of such injury, damage
or loss, unless caused by or due to the negligence of Landlord, its servants,
agents or employees without contributory negligence on the part of Tenant, it
being understood that no property, other than such as might normally be brought
upon or kept in the Premises as incident to the reasonable use of the Premises
for the purposes herein permitted, shall be brought upon or be kept in the
Premises.
29.2 Tenant agrees to take such steps as it may deem necessary and
adequate for the protection of itself, and its servants, agents, employees,
invitees and licensees and the property of the foregoing, by insurance, as a
self-insurer or otherwise.
ARTICLE 30: TENANT'S LIABILITY
30.1 Tenant shall indemnify and hold Landlord and its agent and
employees harmless from and against (a) any and all claims (i) arising from (x)
the conduct or management of the Premises except for Landlord's negligence or of
any business therein, or (y) any work or thing whatsoever done, or any condition
created (other than by Landlord for Landlord's or Tenant's account) in or about
the Premises during the term of this Lease and during the period of time, if
any, prior to the Commencement Date that Tenant may have been given access to
the Premises (including but not limited to damage to persons or property caused
by moving Tenant's Property or other property of Tenant in or out of the
Building, or by the installation or removal of Tenant's Property), or (ii)
arising from any negligent or otherwise wrongful act or omission of Tenant or
any of its subtenants or licensees or its or their employees, agents or
contractors, or (iii) by reason of any breach, violation or nonperformance by
Tenant, its agents, servants, employees, invitees or licensees of any covenant
or provision of this Lease, and (b) all costs, expenses (including reasonable
attorney fees), damages and liabilities incurred in or in connection with each
such claim or action or proceeding b'rought thereon. In case of any action or
proceeding by Tenant brought against Landlord by reason of any such claim,
Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding. Any such costs, expenses, damages and liabilities shall be deemed
Additional Rent, due in the next calendar month after it is incurred. The
provisions of this Article shall survive the termination of this Lease.
ARTICLE 31: TENANT'S INSURANCE
31.1 Notwithstanding the agreement in paragraph 29.2 above, and in
addition thereto, Tenant covenants to provide on or before the Commencement Date
for the benefit of Landlord, the Managing Agent and Tenant tend naming Landlord,
Tenant and any Managing Agent of the Property as insured parties) a
comprehensive policy of liability insurance protecting Landlord and Tenant
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against any liability whatsoever occasioned by accident on or about the Premises
or any appurtenances thereto. Such policy is to be written by insurance
companies qualified to do business in the State of New Jersey and the limits of
liability hereunder shall not be less than the amount of One Million Dollars
($1,000,000.00) in respect of any one person, in respect of any one occurrence,
and in respect of property damage. Such insurance may be carried under a blanket
policy covering the Premises and other locations of Tenant, if any.
31.2 Prior to the time such insurance is first required by this Article
31 to be carried by Tenant, and hereafter, at least fifteen (15) days prior to
the expiration of any such policy, Tenant agrees to deliver to Landlord either a
duplicate original of the aforesaid policy or a certificate evidencing such
insurance, provided said certificate contains an endorsement that such insurance
may not be cancelled except upon thirty (30) days notice to Landlord, together
with evidence of payment for the policy.
31.3 Upon failure at any time on the part of tenant to procure and
deliver to Landlord the policy or certificate of insurance, as hereinabove
provided, stamped "Premium Paid" by the issuing company at least fifteen (15)
days before the expiration of the prior insurance policy or certificate, if any,
or to pay the premiums therefor, Landlord shall be at liberty, from time to
time, as often as such failure shall occur, to procure such insurance and to pay
the premium therefor, and any sums paid for insurance by Landlord shall be and
become, and are hereby declared, to be Additional Rent hereunder for the
collection of which Landlord shall have all the remedies provided for in this
Lease or by law for the collection of rent. Payment by Landlord of such premium
or the carrying by Landlord of any such policy shall not be deemed to waive or
release the default of Tenant with respect thereto. Tenant's failure to provide
and keep in force the aforementioned insurance shall be regarded as a default
hereunder entitling Landlord by exercise any or all of the remedies as provided
in this Lease in the event of an Event of Default.
ARTICLE 32: MECHANIC'S LIENS
32.1 Any mechanics' lien filed against the Real Property for work
claimed to have been done for, or materials claimed to have been furnished to
Tenant shall be bonded by Tenant within thirty (30) days after notice of filing
at Tenant's expense.
ARTICLE 33: NOTICE OF FIRE AND ACCIDENTS
33.1 Tenant shall give Landlord immediate notice in case of fire or
accident on the Premises, or, if involving Tenant, its servants, agents,
employees, invitees or licensees, in the Building or on the Real Property.
ARTICLE 34: DEFINITION OF LANDLORD
34.1 The term "Landlord" as used in this Lease means only the owner for
the time being of the Real Property or the owner of a lease of the Real
Property. In the event of any transfer of title to or lease of the Real
Property, the Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder and this Lease shall be deemed
and construed as a covenant running with the land without further agreement
between the parties or their successors in interest.
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34.2 NO PERSONAL LIABILITY. Landlord shall be under no personal
liability with respect to any of the provisions of this Lease including, but not
limited to, defects in construction, and if Landlord is in breach or default
with respect to its obligations or otherwise, Tenant shall look solely to the
equity of Landlord in the Real Property for the satisfaction of Tenant's
remedies. It is expressly understood and agreed that Landlord's liability under
the terms, covenants, conditions and obligations of this Lease shall in no event
exceed the loss of its equity in the Real Property.
ARTICLE 35: DELETED
ARTICLE 36: DIRECTORY
36.1 Landlord shall furnish and service at the entrance of the Building
a directory, listing therein such reasonable and customary number of names that
Tenant may from time to time request to be listed in such directory.
ARTICLE 37: MISCELLANEOUS
37.1 ENTIRE AGREEMENT. This Lease contains the entire agreement between
the parties, and any attempt hereafter made to change, modify, discharge or
effect an abandonment of it in whole or in part shall be void and ineffective
unless in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought.
37.2 JURY TRIAL WAIVER. Landlord and Tenant do hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matter whatsoever arising out of or in any
connection with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Premises, and/or any claim, injury or damage, or any
emergency or statutory remedy.
37.3 FORCE MAJEURE. If, by reason of an Excusable Delay, Landlord shall
be unable to fulfill its obligations under this Lease or shall be unable to
supply any service which Landlord is obligated to supply, this Lease and
Tenant's obligation to pay Basic Rent and Additional Rent hereunder shall in no
way be affected, impaired or excused, unless otherwise provided in this Lease.
37.4 BROKER. Tenant represents that it has not dealt with any real
estate broker in connection with this Lease, other than the Broker. Tenant
indemnifies and holds Landlord harmless of and from any and all claims,
liabilities, costs or damages Landlord may incur as a result of a breach of this
representation.
37.5 SEPARABILITY. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and all other
terms and provisions of this Lease shall be valid and enforced to the fullest
extent permitted by law.
37.6 INTERPRETATION. (a) Whenever in this Lease any words of obligation
or duty are used, such words or expressions shall have the same force and effect
as though made in the form of covenants. (b) Words of any gender used in this
Lease shall be held to include any other gender, and words in the singular
number shall be held to include the plural, when the sense requires. (c) All
pronouns and any variations thereof shall be
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deemed to refer to the neuter, masculine, feminine, singular or plural as the
identity of the Tenant requires. (d) This Lease shall be strictly construed
neither against Landlord nor Tenant. No remedy or election given by any
provision in this Lease shall be deemed exclusive unless so indicated, but each
shall, wherever possible, be cumulative with all other remedies in law or equity
as otherwise specifically provided. Each provision hereof shall be deemed both a
covenant and a condition and shall run with the land. (e) If, and to the extent
that, any of the provisions of any rider to this Lease conflict or are otherwise
inconsistent with any of the preceding provisions of this Lease, or of the Rules
and Regulations appended to this Lease, whether or not such inconsistency is
expressly noted in the rider, the provisions of the rider shall prevail, and in
case of inconsistency with said Rules and Regulations, shall be deemed a waiver
of such Rules and Regulations with respect to Tenant to the extent of such
inconsistency. (f) Tenant agrees that all of Tenant's covenants and agreements
herein contained providing for the payment of money and Tenant's covenant to
remove mechanic's liens shall be deemed conditions as well as covenants, and
that if default be made in any such covenants, Landlord shall have all of the
rights provided for herein. (g) The parties mutually agree that the headings and
captions contained in this Lease are inserted for convenience of reference only,
and are not to be deemed part of or to be used in construing this Lease. (h) The
covenants and agreements herein contained shall, subject to the provisions of
this Lease, bind and inure to the benefit of Landlord, its successors add
assigns, and Tenant, its successors and assigns except as otherwise provided
herein. (i) It is further understood and agreed that wherever the provisions of
this Lease require that Landlord shall approve or consent, Landlord agrees not
to unreasonably withhold or delay such prompt approval and consent and wherever
Tenant is required to do anything to the satisfaction of Landlord it shall be
deemed except as set forth in Article 12 that reasonable satisfaction of
Landlord will be sufficient; provided that Landlord shall not be deemed to have
unreasonably withheld or delayed its consent or approval if such consent or
approval shall be subject to the consent or approval of any ground lessor or
mortgagee by the terms of the instrument creating such interest, and such ground
lessor or mortgagee shall have refused to, or delayed in, giving the same. (j)
This Lease has been executed and delivered in the State of New Jersey and shall
be construed in accordance with the law of the State of New Jersey, and Landlord
and Tenant acknowledge that all of the applicable law of the State of New Jersey
is superimposed on the rights, duties and obligations of Landlord and Tenant
hereunder and this Lease shall not otherwise provide that which such law
prohibits. (k) Landlord has made no representations or promises with respect to
the Premises or the Real Property, except as expressly contained herein.
Landlord shall supply, at its sole cost and expense Building Standard Materials,
in Tenant's choice of Building Standard Colors, as outlined on Exhibit B
attached hereto and made a part hereof. Tenant has inspected the Premises and
agrees to take the same in an "as is" condition, except as otherwise expressly
set forth. Landlord shall have no obligation, except as herein set forth, to do
any work in and to the Premises to render them ready for occupancy and use by
Tenant.
37.7 NO OPTION. The submission of this Lease for examination does not
constitute a reservation of, or option for the Premises and this Lease shall
become effective as a lease only upon execution and delivery thereof by Landlord
and Tenant.
37.8 AIR, WATER AND GROUND POLLUTION. Tenant expressly covenants and
agrees to indemnify, defend, and save Landlord harmless against any claim,
damage, liability, costs, penalties, or fines which Landlord may suffer as a
result of Air, Water or Ground Pollution (hereinafter referred to as "Pollu-
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<PAGE>
tion") caused by Tenant in its use of the Premises. Tenant covenants and agrees
to notify Landlord immediately of any claim or notice served upon it with
respect to any such claim Tenant is causing Pollution; and Tenant, in any event,
will take immediate steps to halt, remedy or cure any Pollution caused by Tenant
by its use of the Premises. The foregoing covenant shall survive the expiration
or termination of the within Lease. Without limiting anything hereinabove
contained in this Article 37, Tenant expressly covenants and agrees to fully
comply with the provisions of the New Jersey Environmental Clean Up
Responsibility Act (N.J.S.A. 13:1K-6, et seq.) hereinafter referred to as
"ECRA", and all regulations promulgated thereto prior to the expiration or
earlier termination of the within Lease. In the event evidence of such
compliance is not delivered to Landlord prior to surrender of the Premises by
Tenant to Landlord, it is understood and agreed that Tenant shall be liable to
pay Basic Rent and all Additional Rents to Landlord from the date of surrender
until such time as evidence of compliance with ECRA has been delivered to
Landlord. The within covenant shall survive the expiration or earlier
termination of the Lease term.
37.9 Tenant shall not record this Lease or a memorandum thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date first above written.
WITNESS: LANDLORD:
SUTMAN ASSOCIATES
/s/ GAIL A. WHITEFRIED By: /s/ HAROLD G. STERLING
- ----------------------------------- ----------------------------------
HAROLD G. STERLING,
General Partner
ATTEST: TENANT:
AMERICAN INTERNATIONAL RECOVERY, INC.
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
- ----------------------------------- ----------------------------------
President
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<PAGE>
RIDER TO LEASE DATED MARCH 1, 1988 between SUTMAN ASSOCIATES as
LANDLORD and AMERICAN INTERNATIONAL ADJUSTMENT COMPANY, INC. as TENANT.
38.0 PARKING. Landlord shall provide thirty-eight parking spaces for
the non-exclusive use of Tenant's employees. If Tenant takes additional space in
the Building, Landlord shall provide additional parking space at the rate of one
(l) additional parking space for each two hundred fifty (250) square feet of
additional Useable Area of the Premises.
39.0 OPTION TO RENEW. Provided the Lease has not been previously
terminated, Tenant is occupying the Premises and Tenant is not then in default
under the terms, covenants, conditions, provisions or agreements of the Lease,
Tenant shall have the option to extend the Lease for all, but not less than all,
of the premises thereunder for the term of five (5) years ("Extended Term")
commencing on the date immediately after the Termination Date of the Lease,
provided Tenant gives written notice of its election to extend the term of the
Lease no later than nine (9) months prior to the Termination Date.
If Tenant exercises the option to extend the Lease granted hereunder,
the amount of Basic Rent to be paid by Tenant for the Extended Term shall be an
amount equal to One Dollar per square rentable foot less than the Market Value
Rent (as hereinafter defined) of the Premises. The term "Market Value Rent"
shall mean the annual fair market rental value of the Premises as of the
Determination Date (as hereinafter defined), reduced by a value adequate to
offset the fact that the Base Years for calculation of Additional Rent pursuant
to Article VII of the Lease, are to remain unchanged and that Additional Rental
as calculated under said Article shall continue to be paid by Tenant. Tenant
agrees to continue paying Additional Rent pursuant to Article VII of the Lease
as stated in the preceding sentence. Provided, however, in no event shall the
Basic Rent for the Extended Term be less than the Basic Rent for the initial
term. For purposes thereof, "Determination Date" shall mean the date which is
three (3) months prior to the commencement of the Extended Term.
The initial determination of Market Value Rent shall be made by
Landlord. Landlord shall give notice to Tenant of the proposed Market Value Rent
at least three (3) months prior to the Determination Date. If Landlord and
Tenant shall fail to agree upon the Market Value Rent proposed by Landlord on or
before the date which is fifteen (15) days prior to the Determination Date, then
Landlord and Tenant shall give notice to the other setting forth the names and
addresses of an arbitrator (as hereinafter qualified) designed by the party
giving such notice. If either party shall fail to give notice of such
designation, then the arbitrator chosen shall make the determination alone. If
two arbitrators have been designed, such two arbitrators may consult with each
other and shall, prior to the Determination Date, make their determinations of
Market Value Rent in writing, and give notice thereof to each other and to
Landlord and Tenant. Such two arbitrators shall have fifteen (15) days after
receipt of notice of each other's determinations to confer with each other and
to attempt to reach agreement as to the determination of Market Value Rent. If
such two arbitrators shall concur as to the determination of Market Value Rent,
such concurrence shall be final and binding upon Landlord and Tenant. If such
two arbitrators shall fail to concur, then such two arbitrators shall
immediately designate a third arbitrator. If the two arbitrators shall fail to
agree upon the designated of such third arbitrator within eight (8) days of the
Determination Date, then either party may apply to the American Arbitration
Association or any
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<PAGE>
successor thereto having jurisdiction, for the designation of such arbitrator.
All arbitrators shall be real estate appraisers or consultants who shall have
had at least fifteen (15) years continuous experience in the business of
appraising or managing real estate or acting as real estate agents or brokers in
Morris County, New Jersey. The third arbitrator shall conduct such hearings and
investigations as he may deem appropriate and shall, within fifteen (15) days
after the Determination Date (or the date of designation of the third arbitrator
if designed by the American Arbitration Association) choose one of the
determinations of the two arbitrators originally selected by the parties and
that choice by the third arbitrator shall be binding upon Landlord and Tenant,
provided Tenant shall have five (5) days thereafter to rescind its written
notice of election or extend the Lease for the Extended Term. Each party shall
pay its own counsel fees and expenses, if any, in connection with any
arbitration hereunder, including the expenses and fees of any arbitrator
selected by it in accordance with the above provisions, and the parties shall
share equally all other expenses and fees of any such arbitration. The
determination rendered in accordance with the above provisions shall be final
and binding in fixing the Market Value Rent. The arbitrators shall not have the
power to add to, modify or change any of the provisions of this Lease.
If for any reason the Market Value Rent shall not have been determined
prior to the date upon which the change in Basic Rent was to become effective,
then until the Market Value Rent and accordingly, the Basic Rent shall have been
finally determined in respect of any period for which such a determination is to
be made, the Basic Rent and all Additional Rent payable subsequent to the date
upon which the rent change being determined was to become effective shall be
equal to the Basic Rent and all Additional Rent in effect on the last day
immediately prior to such date. Upon such final determination, an appropriate
adjustment shall be made promptly reflecting such final determination and Tenant
shall promptly pay to Landlord any deficiency between the amount of Basic Rent
determined to have been payable by Tenant from the new commencement date and the
amount Tenant actually paid Landlord prior to such final determination.
40.0 LANDLORD'S CONSENT REQUIREMENTS. As used herein, the term
"Landlord's Consent Requirements" shall mean the following minimum requirements
which must be met by Tenant before Landlord shall consent to an assignment or
subletting of all or part of the Premises: (a) An assignment or subletting at
any one time to no more than one subtenant or assignee. (b) An assignment or
subletting for not less than 5000 rentable square feet. (c) An assignment or
subletting for a term of not less than two years (unless the unexpired Term of
this Lease shall be less than one year, in which event for the unexpired portion
of such Term). (d) An assignment or subletting to a then-current tenant or
occupant of the Building, if there is available in the Building any vacant space
of a size sufficient to satisfy such tenant's or occupant's requirements,
provided that the required space shall be in excess of 5000 rentable square
feet.
-2-
<PAGE>
BUILDING MAINTENANCE SPECIFICATIONS
A. GENERAL (Five Nights Per Week)
1. All ceramic tile and other unwaxed flooring to be swept nightly and
washed as necessary.
2. All composition tile to be swept. In sweeping, all furniture to be
moved when necessary to reach inaccessible areas.
3. All carpeting, rugs and upholstered furniture to be vacuumed.
4. All furniture, fixtures, pictures, ledges, chair rails and other
furniture and window sills to be hand-dusted and cleaned. All window
sills to be washed when necessary.
5. All ash trays to be emptied and damp-wiped clean.
6. All waste receptacles to be emptied and refuse removed to a
designated area of the Building.
7. Interiors of all waste disposal cans and baskets will be kept clean
by inserting a plastic liner in each. Wash disposal units and
replace liners upon request.
8. All water coolers to be washed.
9. All door louvres and other ventilating louvres within reach to be
hand-dusted.
10. All telephones to be hand-dusted.
11. All bright work to be wiped clean and polished.
12. All fingerprints and smudges to be removed from painted vertical
surfaces whenever and wherever practicable.
13. All stairways to be swept and dusted nightly and mopped or scrubbed
weekly.
14. The elevators to be swept, dusted, washed nightly and waxed as
necessary.
B. LAVATORIES (Five Nights Per Week)
1. All lavatory rooms to be swept and washed nightly with Phenolic or
Quaternary disinfectant and power machine scrubbed monthly.
2. All mirrors, shelves, bright work and enameled surfaces in
lavatories to be washed and polished.
3. All basins, bowls and urinals to be sour-washed with a Phenolic or
Quaternary disinfectant.
4. All toilet seats to be sour-washed and disinfected.
5. All partitions, tile walls, dispensers and receptacles to be
hand-dusted and washed when necessary.
6. Landlord to furnish paper towels, toilet tissue, hand soap and
sanitary napkins. Units should be checked and replenished daily.
-1-
<PAGE>
7. All paper towel receptacles to be emptied.
8. All sanitary napkin disposal receptacles to be emptied.
9. All wash tile and stall surfaces to be washed and polished as often
as necessary.
C. HIGH DUSTING
1. All pictures, frames, charts, graphs and similar wall hangings not
reached in daily cleaning to be dusted at least twice per month.
2. All vertical surfaces such as walls, partitions, doors, bucks and
other surfaces not reached in daily cleaning to be dusted at least
twice per month.
3. All pipes, ventilating and air conditional louvres, ducts, high
moldings and other high areas not reached in daily cleaning to be
dusted at least once per month.
D. LOBBY
1. Floors of entrance lobby to be swept and washed as necessary
2. Lobby wall surfaces to be hand-dusted as often as necessary.
-2-
<PAGE>
RULES AND REGULATIONS
1. Tenant shall not obstruct or permit its employees, agents, servants,
invitees or licensees to obstruct, in any way, the sidewalks, entry passages,
corridors, halls stairways or elevators of the Building, or use the same in any
way other than as a means of passage to and from the offices of Tenant; bring
in, store, test or use any materials in the Building which could cause a fire or
an explosion or produce any fumes or vapor; make or permit any improper noises
in the Building; smoke in any elevator; throw substances of any kind out of
windows or doors, or down the passages of the Building, or in the halls or
passageways; sit on or place anything upon the window sills; or clean the
windows.
2. Water closets and urinals shall not be used for any purpose other
than those for which they were constructed, and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them. Waste
and excessive or unusual use of electricity or water is prohibited.
3. The windows, doors, partitions and lights that reflect or admit
light into the halls or other places of the Building shall not be obstructed. NO
SIGNS, ADVERTISEMENTS OR NOTICES SHALL BE INSCRIBED, PAINTED, AFFIXED OR
DISPLAYED IN, ON, UPON OR BEHIND ANY WINDOWS, except as may be required by law
or agreed upon by the parties; and no sign, advertisement or notice shall be
inscribed, painted or affixed on any doors, partitions or other part of the
inside of the Building, without the prior written consent of Landlord. If such
consent be given by Landlord, any such sign, advertisement, or notice shall be
inscribed, painted or affixed by Landlord, or a company approved by Landlord,
but the cost of the same shall be charged to and be paid by Tenant, and Tenant
agrees to pay the same promptly, on demand.
4. No contract of any kind with any supplier of towels, water, ice,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
paper, rubbish or garbage, or other like service shall be entered into by
Tenant, not shall any vending machine of any kind be installed in the Building,
without the prior written consent of Landlord.
5. When electric wiring of any kind is introduced it must be connected
as directed by Landlord, and no stringing or cutting of wires will be allowed,
except with the prior written consent of Landlord, and shall be done only by
contractors approved by Landlord. The number and location of telephones,
telegraph instruments, electric appliances, call boxes, etc., shall be approved
by Landlord. No tenant shall lay floor covering so that the same shall be in
direct contact with the floor of the Premises; and if 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, the use of cement or other similar
adhesive material being expressly prohibited.
6. Landlord shall have the right to prescribe the weight, size and
position of all safes and other bulky or heavy equipment and all freight brought
into the Building by any tenant; and the time of moving the same in and out of
the Building. All such moving shall be done under the supervision of Landlord.
Landlord will not be responsible for loss of or damage to any such equipment or
freight from any cause; but all damage done to the Building by moving or
maintaining any such equipment or freight shall be repaired at the expense of
Tenant. Landlord
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<PAGE>
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 or the Lease of which these Rules and Regulations are a part. Tenant
shall not place a load upon any floor of the Premises that exceeds the floor
load per square foot that such floor was designed to carry and which is allowed
by certificate, rule, regulation, permit or law. Subject to the terms of the
preceding sentence, if Tenant wishes to place any safes or vaults in the
premises, it may do so at its own expense, provided the floor load capacity is,
in landlord's judgment, sufficient and landlord reserves the right to prescribe
their weight and position.
7. No machinery of any kind or articles of unusual weight or size will
be allowed in the Building, without the prior written consent of Landlord.
Business machines and mechanical equipment shall be placed and maintained by
Tenant, at Tenant's expense, in setting sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance to other tenants.
8. No additional lock or locks shall be placed by Tenant on any door in
the Building, without the prior written consent of Landlord. Two keys will
initially be furnished to Tenant by Landlord; two additional keys will be
supplied to Tenant by Landlord, upon request, without charge; any additional
keys requested by Tenant shall be paid for by Tenant. Tenant, its agents and
employees, shall not have any duplicate key made and shall not change any lock.
All keys to doors and washrooms shall be returned to Landlord on or before the
Termination Date, and, in the event of a loss of any keys furnished, Tenant
shall pay Landlord the cost thereof.
9. Tenant shall not employ any person or persons for the purpose of
cleaning the Premises, without the prior written consent of Landlord. Landlord
shall not be responsible to Tenant for any loss of property from the Premises
however occurring, or for any damage done to the effects of Tenant by such
janitors or any of its employees, or by any other person or any other cause.
10. No bicycles, vehicles or animals of any shall be brought into or
kept in or about the Premises.
11. The requirements of Tenant will be attended to only upon
application at the office of Landlord. Employees of Landlord shall not perform
any work for Tenant or do anything outside of their regular duties, unless under
special instructions from Landlord.
12. The Premises shall not be used for lodging or sleeping purposes,
and cooking therein prohibited.
13. Tenant shall not conduct, or permit any other person to conduct,
any auction upon the Premises; manufacture of store goods, wares or merchandise
upon the Premises, without the prior written approval of Landlord, except the
storage of usual supplies and inventory to be used by Tenant in the conduct of
its business; permit the Premises to be used for gambling; make any unusual
noises in the Building; permit to be played any musical instrument in the
Premises; permit to be played any radio, television, recorded or wired music in
such a loud manner as to disturb or annoy other tenants; or permit any unusual
odors to be produced upon the Premises.
14. Between 6:00 P.M. and 8.00 A.M. on weekdays, before 8:00 A.M. and
after 1:00 P.M. on Saturdays, and all day Sunday and Building Holidays, the
Building is closed. Landlord reserves the right to exclude from the Building
during such periods all persons who do not present a pass to the Building
-2-
<PAGE>
signed by Tenant. Each Tenant shall be responsible for all persons to whom such
passes are issued and shall be liable to Landlord for all acts of such persons.
15. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Premises,
without the prior written consent of Landlord. Such curtains, blinds and shades
must be a quality, type, design, and color, and attached in a manner approved by
Landlord.
16. Canvassing, soliciting and peddling in the Building are prohibited,
and Tenant shall cooperate to prevent the same.
17. There shall not be used in the Premises or in the Building either
by Tenant or by others in the delivery or receipt of merchandise, supplies or
equipment, any hand trucks except those equipped with rubber tires and side
guards. No hand trucks will be allowed in passenger elevators.
18. Each Tenant, before closing and leaving the Premises, shall ensure
that all windows are closed and all entrance doors locked.
19. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
20. Landlord hereby reserves to itself any and all rights not granted
to Tenant hereunder, including, but not limited to, the following rights which
are reserved to Landlord for its purposes in operating the Building: (a) the
exclusive right to the use of the name of the Building for all purposes, except
that Tenant may use the name as its business address and for no other purpose;
(b) the right to change the name or address of the Building, without incurring
any liability to Tenant for so doing; (c) the right to install and maintain a
sign or signs on the exterior of the Building; (d) the exclusive right to use or
dispose of the sue of the roof of the Building; (e) the right to limit the space
on the directory of the Building to be allotted to Tenant; (f) the right to
grant to anyone the right to conduct any particular business or undertaking in
the Building.
21. Tenant shall list all articles to be taken from the Building
(other than those taken out in the usual course of business of Tenant) on
Tenant's letterhead, or a blank which will be furnished by Landlord. Such list
shall be presented at the office of the Building for approval before such
articles are taken from the Building.
22. Unless Exhibit "B" of the Lease shall designate Parking Spaces for
Tenant's exclusive use, Tenant shall have the non-exclusive right to use in
common with Landlord and other tenants of the Building and their employees and
invitees the parking area provided by Landlord for the parking of passenger
automobiles, other than parking spaces specifically allocated to others by
Landlord. Landlord may issue parking permits, install a gate system, and impose
any other system as Landlord deems necessary for the use of the parking area.
Tenant agrees that it and its employees and invitees shall not park their
automobiles in parking spaces allocated to others by Landlord and shall comply
with such rules and regulations for use of the parking area as Landlord may from
time to time prescribe. Landlord shall not be responsible for any damage to or
theft of any vehicle in
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<PAGE>
the parking area and shall not be required to keep parking spaces clear of
unauthorized vehicles or to otherwise supervise the use of the parking area.
Landlord reserves the right to change any existing or future parking area, roads
or driveways, and may make any repairs or alterations it deems necessary to the
parking area, roads and driveways and to temporarily revoke or modify the
parking rights granted to Tenant hereunder.
23. Tenant shall not use the Premises or permit the Premises to be used
for the sale of food or beverages
-4-
<PAGE>
FIRST AMENDMENT OF LEASE
THIS AGREEMENT made as of the 29th day of March, 1989, between SUTMAN
ASSOCIATES, a New Jersey Limited Partnership, having an office and principal
place of business at 1373 Broad Street, Clifton, New Jersey (hereinafter called
"Landlord") and AMERICAN INTERNATIONAL RECOVERY, INC., a corporation, having an
office and principal place of business at 70 Pine Street, New York, New York
(hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore entered into a lease dated
March 14, 1988 (the "Lease") covering a portion of the second (2nd) floor in the
building known as SUTTON CROSSROADS, located at 7 Ridgedale Avenue, Cedar
Knolls, New Jersey (the "Premises") at the annual rental and upon the other
terms, provisions, covenants, conditions and agreements more particularly set
forth therein;
WHEREAS, Landlord and Tenant heretofore entered into a Letter Agreement
dated July 12, 1988, wherein the Premises were relocated to the First Floor of
the Building; and
WHEREAS, Tenant is desirous of hiring from Landlord and Landlord is
desirous of leasing to Tenant, additional office space located on the First
(1st) floor of the Building;
NOW THEREFORE, in consideration of Ten Dollars ($10.00) paid by each of
the parties to the other, receipt whereof is hereby acknowledged, and other good
and valuable consideration including the covenants and undertakings hereinafter
contained, the parties agree as follows:
FIRST: The Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the portion of the First (1st) floor in the Building shown (i.e.,
cross-hatched in red) on the plan attached hereto and made a part hereof,
consisting of approximately 6,336 rentable square feet (the "Additional Space").
The Tenant shall occupy a total of 16,038 square feet on the First (1st) floor.
<PAGE>
-2-
SECOND: The term of the Lease for the Additional Space shall commence
on May 1, 1989, or occupancy, whichever is later, and end on September 30, 1995,
both dates inclusive, at the additional annual rental of One Hundred One
Thousand Fifty Nine and 20/100 Dollars ($101,059.20). The total annual rental
payable by Tenant in accordance with the terms of the Lease, as amended herein,
sha11 be Two Hundred Fifty-Five Thousand Eight Hundred Eleven and 20/100 Dollars
($255,,311.20) payable in equal monthly installments of Twenty One Thousand
Three Hundred Seventeen and 60/100 Dollars ($21,317.60). The Tenant shal1 have
two (2) free months from May 1, 1989, or occupancy, whichever is later.
THIRD: For the purposes of computing any increase or decrease of rent
hereinabove reserved covering the Additional Space by reason of any increase or
decrease in Real Estate Taxes or Operating Expenses pursuant to the provisions
of Article 7 of the Lease, Tenant's proportionate share of any such increase or
decrease in Real Estate Taxes and/or Operating Expense shall be increased from
15.65% to 25.87%.
FOURTH: The parties recognize and acknowledge that Garner Simson
Associates, Inc., was the real estate broker responsible for consummating this
First Amendment of Lease; commission hereon shall be paid by Landlord in
accordance with the terms of a separate agreement with Broker.
FIFTH: Tenant's parking spaces shall be increased from 38 to 60 spaces.
If Landlord grants reserved parking, Tenant shall receive their proportionate
share of the reserved spaces.
SIXTH: Landlord and Tenant agree that the Premises are demised in an
"AS IS" condition, except that Landlord will build the Additional Space and do
all the changes indicated on the plans dated MARCH 3, 1989, at Landlord's sole
cost and expense. Landlord further agrees to pay for a11 construction drawings
required to build out the premises.
The Tenant agrees that the plans and specifications will be delivered
to the Landlord, not later than March 14, 1989. Said plans are subject to
Landlord's written approval, which approval shall not be unreasonably withheld.
Within fifteen (15) days after notification from Landlord of any objections to
Tenant's plans, Tenant shall submit to Landlord, new plans curing Landlord's
objections.
The parties further covenant and agree that Tenant may use and occupy
the Additional Premises from and after such date as a Certificate of Occupancy
therefor (either permanent or temporary) is obtained from the municipality
<PAGE>
-3-
under all of the terms, covenants, conditions, provisions and agreements of the
Lease, except for the payment of the Basic Rent (but including the payment of
electrica1 charges as set forth in Article 15 of the Lease). As of May 1, 1989,
or after two (2) months of occupancy, whichever is Later, Tenant sha1l pay the
Basic Rent and all of the other terms, covenants and conditions of the Lease
shall continue in full force and effect.
SEVENTH: It is covenanted and agreed that, the Base year for Real
Estate Taxes and Operating Expense, both as set forth in Article 7 of the Lease,
shall be 1989.
EIGHTH: All other terms, covenants, conditions, provisions and
agreements contained in the Lease shall apply to this First Amendment of Lease
with the same force and effect as if the same had been set forth in full, except
as herein otherwise expressly provided or modified.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto the day and year first written above.
WITNESS: LANDLORD:
SUTMAN ASSOCIATES
/s/ GAIL A. WHITEFIELD By: /s/ HAROLD G. STERLING
- ----------------------------------- ----------------------------------
Gail A. Whitefield HAROLD G. STERLING, General Partner
WITNESS: TENANT:
AMERICAN INTERNATIONAL RECOVERY, INC.
By: /s/ [ILLEGIBLE]
- ----------------------------------- ----------------------------------
- -----------------------------------
<PAGE>
SECOND AMENDMENT OF LEASE
THIS AGREEMENT, made as of the 30th day of June, 1995, between SUTMAN
ASSOCIATES, a New Jersey Partnership, having an office and principal place of
business at 1373 Broad Street, Clifton, New Jersey (hereinafter called
"Landlord"), and AMERICAN INTERNATIONAL RECOVERY, INC., a corporation, having an
office and principal place of business at 70 Pine Street, New York, New York
(hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore entered into an Agreement of
Lease, dated March 14, 1988, (the "Lease"), demising a portion of the second
(2nd) floor in the Building known as Sutton Crossroads, located at 7 Ridgedale
Avenue, Cedar Knolls, New Jersey (the "Building") at the annual rent, for the
term, and upon the other terms, provisions, covenants, conditions and agreements
more particularly set forth therein; and
WHEREAS, Landlord and Tenant heretofore entered into a Letter
Agreement, dated July 12, 1988, wherein the premises were relocated to the First
Floor of the Building; and
WHEREAS, on March 29, 1989, Landlord and Tenant entered in the First
Amendment to Lease, wherein Landlord demised to Tenant additional premises on
the first (1st) floor of the Building; and
WHEREAS, Tenant is desirous of extending the Term of the Lease for an
additional five (5) year period and Landlord has agreed to such extension.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) paid
by each of the parties to the other, receipt
<PAGE>
whereof is hereby acknowledged, and other good and valuable consideration
including the covenants and undertakings hereinafter contained, the parties
agree as follows:
FIRST: The parties covenant and agree that for the purpose of this
Second Amendment of Lease, the total space occupied by Tenant (the "Premises")
is 16,038 Rentable Square Feet.
SECOND: Tenant herein exercises its Option to Renew as set forth in
Article 39 of the Lease, extending the Term of the Lease, and the parties
covenant and agree that the Term of the Lease for the present Premises shall be
extended for an additional term of five (5) years, so that the Lease shall now
expire on September 30, 2000. The Basic Rent for the Premises for this renewal
term shall be Two Hundred Forty Thousand, Five Hundred Seventy and 00/100
($240,570.00) Dollars per annum, payable in equal monthly installments of Twenty
Thousand, Forty-Seven and 50/100 ($20,047.50) Dollars each. The Basic Rent, as
set forth above, shall be paid commencing July 1, 1995 (in lieu of the Basic
Rent payable under the original Lease Provisions).
THIRD: Tenant's Proportionate Share shall be 25.87%.
FOURTH: Modifying the provisions of Article 7 of the Lease, it is
agreed that, effective July 1, 1995, the Base Year for the calculation of
escalation charges shall be changed to 1995. However, Tenant shall pay all
current escalation costs, as set forth in Article 7, for the period from January
1, 1995 through June 30, 1995.
FIFTH: Landlord, at its sole cost and expense, shall provide the work,
labor, materials and installations in the Premises as set forth on Preliminary
Layout #1, prepared by CHS Planning and Design Corporation, dated 03/01/95, Job
#770, (the "Work"). * Landlord, at its cost and expense, shall cause
architectural plans to be prepared by Rothe-Johnson Associates, for the Work to
be done on behalf of Tenant. All such plans will reflect the work and finishes
set forth in Preliminary Layout #1 and are expressly subject to Tenant's written
approval which shall not be unreasonably withheld or delayed. Landlord shall
cause said plans to be filed, at Landlord's cost, with the appropriate
governmental agencies so that a Building Permit will be issued.
The cost to Landlord of all such Work shall not exceed the sum
2
<PAGE>
of $152,361.OO. * NOTWITHSTANDING THE AFOREMENTIONED, THE LANDLORD AGREES NOT
TO COMMENCE CONSTRUCTION UNTIL THE LANDLORD RECEIVES FULLY APPROVED PLANS FROM
TENANT'S REPRESENTATIVE.
SIXTH: Modifying the provisions of Article 7.3, there shall be added
after "of the Building or such Tenant." (i.e., line 33, page 7), the following
sentence: "It is the intention of the parties that all calculations for
Operating Expenses for the Base Year and each Operational Year shall be adjusted
as if the Building was 100% occupied, if, in actuality, the Building had less
than 100% occupancy for such year".
SEVENTH: Landlord shall use its best efforts to secure from the
current, and any future, holder of a superior interest in the Building, a
Subordination, Non-Disturbance and Attornment Agreement, in the Lender's
standard form of such agreement.
EIGHTH: Provided that Tenant is not in default under any of the terms,
covenants, conditions, provisions and agreements of the Lease, as amended, at
the time of the giving of the notice hereunder and on the effective date of
cancellation, Tenant shall have the option to cancel and terminate this Lease at
the end of the fourth (4th) year of the renewal term (i.e., September 30, 1999)
upon the giving of not less than nine (9) months prior written notice. In such
event, this Lease shall terminate as of the effective date of said notice and
neither party shall have any further rights or obligations to the other, except
that Tenant shall be obligated to (a) make such payments as may be required
under the provisions of Article 7 of the Lease and (b) make two payments to
Landlord, one at the time of the giving of said notice, and one thirty (30) days
prior to Tenant's vacating of the Premises, each payment in an amount equal to
50% of (i) the unamortized portion of all Work to be provided by Landlord as set
forth in Article FIFTH, amortized over a period of five (5) years, including
interest, on the total cost of such Work, at the rate of 10% per annum, and (ii)
the unamortized portion of any brokerage commissions previously paid to
Pinestarr Realty, Inc. Landlord, upon the completion of all Work set forth in
Article FIFTH above, shall provide Tenant with a detailed accounting of all
Work.
NINTH: Option to Extend. Provided the Lease has not been previously
terminated, Tenant is occupying the Premises and Tenant is not then in default
under the terms, covenants, conditions, provisions or agreements of the Lease
(and any time to cure such default has expired), Tenant shall have the Option to
Extend the Lease for all, but not less than all, of the Premises hereunder for
one term of five (5) years, commencing on the date
3
<PAGE>
immediately after the termination date of this First Renewal Term of the Lease
as provided in this Second Amendment to Lease. Tenant shall give written notice
of its election to extend the Term of the Lease no later than nine (9) months
prior to the Termination Date of the First Renewal Term (i.e., January 1, 2000).
If Tenant exercises the Option to Extend the Lease for the Second
Renewal Term of five (5) years the amount of Basic Rent to be paid by Tenant for
the Second Renewal Term shall be an amount equal to 95% of the Market Value Rent
(as hereinafter defined) of the Premises. All of the other terms, conditions,
provisions and agreements of the Lease shall continue in full force and effect.
The term "Market Value Rent" shall mean the annual fair market rental
value of the Premises as of the Determination Date (as hereinafter defined),
reduced by a value adequate to offset the fact that the Base Years for
calculation of Additional Rent pursuant to Article 7 of the Lease, are to remain
unchanged and that Additional Rental as calculated under said Article shall
continue to be paid by Tenant. Tenant agrees to continue paying Additional Rent
pursuant to Article 7 of the Lease as stated in the preceding sentence.
Provided, however, in no event shall the Basic Rent (per rentable
square foot) for the Second Renewal Term be less than the Basic Rent for the
First Renewal Term. For purposes hereof, Determination Date shall mean the date
which is three (3) months prior to the Commencement of the Second Renewal Term.
The initial determination of Market Value Rent shall be made by
Landlord. Landlord shall give notice to Tenant of the proposed Market Value Rent
at least three (3) months prior to the Determination Date. If Landlord and
Tenant shall fail to agree upon the Market Value Rent proposed by Landlord on or
before the date which is fifteen (15) days prior to the Determination Date, then
Landlord and Tenant shall give notice to the other setting forth the names and
addresses of an arbitrator (as hereinafter qualified) designated by the party
giving such notice. If either party shall fail to give notice of such
designation, then the arbitrator chosen shall make the determination alone. If
two arbitrators have been designated, such two arbitrators may consult with each
other and shall, prior to the Determination Date, make their determinations of
Market Value Rent in writing, and give notice thereof to each other and to
Landlord and Tenant. Such two arbitrators shall have fifteen (15) days after
receipt of notice of each other's determinations to confer with each other and
to
4
<PAGE>
attempt to reach agreement as to the determination of Market Value Rent. If such
two arbitrators shall concur as to the determination of Market Value Rent, such
concurrence shall be final and binding upon Landlord and Tenant. If such two
arbitrators shall fail to concur, then such two arbitrators shall immediately
designate a third arbitrator. If the two arbitrators shall fail to agree upon
the designated of such third arbitrator within eight (8) days of the
Determination Date, then either party may apply to the American Arbitration
Association or any successor thereto having jurisdiction, for the designation of
such arbitrator. All arbitrators shall be real estate appraisers or consultants
who shall have had at least fifteen (15) years continuous experience in the
business of appraising or managing real estate or acting as real estate agents
or brokers in Morris County, New Jersey. The third arbitrator shall conduct such
hearings and investigations as he may deem appropriate and shall, within fifteen
(15) days after the Determination Date (or the date of designation of the third
arbitrator if designed by the American Arbitration Association) choose one of
the determinations of the two arbitrators originally selected by the parties and
that choice by the third arbitrator shall be binding upon Landlord and Tenant,
provided Tenant shall have fifteen (15) days thereafter to rescind its written
notice of election or extend the Lease for the Extended Term. Each party shall
pay its own counsel fees and expenses, if any, in connection with any
arbitration hereunder, including the expenses and fees of any arbitrator
selected by it in accordance with the above provisions, and the parties shall
share equally all other expenses and fees of any such arbitration. The
determination rendered in accordance with the above provisions shall be final
and binding in fixing the Market Value Rent. The arbitrators shall not have the
power to add to, modify or change any of the provisions of this Lease.
If for any reason the Market Value Rent shall not have been determined
prior to the date upon which the change in Basic Rent was to become effective,
then until the Market Value Rent and accordingly, the Basic Rent shall have been
finally determined in respect of any period for which such a determination is to
be made, the Basic Rent and all Additional Rent payable subsequent to the date
upon which the rent change being determined was to become effective shall be
equal to the Basic Rent and all Additional Rent in effect on the last day
immediately prior to such date. Upon such final determination, an appropriate
adjustment shall be made promptly reflecting such final determination and Tenant
shall promptly pay to Landlord, or have credited against the next rents payable,
any deficiency between the amount of Basic Rent determined
5
<PAGE>
to have been payable by Tenant from the new commencement date and the amount
Tenant actually paid Landlord prior to such final determination.
TENTH: Tenant shall be granted a second right of refusal on all
available space on the first (1st) floor of the Building, subject to all rights
thereto of existing tenants on the first (1st) floor.
ELEVENTH: Tenant represents that it has only dealt with Pine Star
Realty and CB Commercial in connection with this Lease Amendment and it has not
dealt with any other real estate broker in connection therewith. Landlord, based
upon Tenant's representations, agrees that it shall pay Pine Star Realty and CB
Commercial commissions in accordance with the provisions of separate agreements
between Landlord and Pine Star Realty and CB Commercial. Tenant shall indemnify
and hold Landlord harmless of and from any and all claims, liabilities, costs or
damages Landlord may incur as a result of a breach of this representation.
TWELFTH: All other terms, covenants, conditions, provisions and
agreements contained in the Lease, as amended, shall apply to this Second
Amendment of Lease with the same force and effect as if the same had been set
forth in full, except as herein otherwise expressly provided or modified.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto the day and year first above written.
WITNESS: LANDLORD:
SUTMAN ASSOCIATES
By: /s/ HAROLD G. STERLING
- ----------------------------------- ----------------------------------
HAROLD G. STERLING,
General Partner
ATTEST: TENANT: AMERICAN INTERNATIONAL
RECOVERY, INC.
/s/ ELIZABETH M. JACK By: /s/ THOMAS A. SPANO
- ----------------------------------- ----------------------------------
THOMAS A. SPANO President
6
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE JUNE 30,
1998 FINANCIAL STATEMENTS INCLUDED IN THE REGISTRANTS FORM 10-Q AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 6,870
<SECURITIES> 0
<RECEIVABLES> 39,298
<ALLOWANCES> 1,160
<INVENTORY> 6,589
<CURRENT-ASSETS> 55,599
<PP&E> 11,359
<DEPRECIATION> 3,800
<TOTAL-ASSETS> 65,616
<CURRENT-LIABILITIES> 20,884
<BONDS> 0
0
0
<COMMON> 63
<OTHER-SE> 43,994
<TOTAL-LIABILITY-AND-EQUITY> 65,616
<SALES> 61,119
<TOTAL-REVENUES> 90,412
<CGS> 73,495
<TOTAL-COSTS> 87,093
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 46
<INCOME-PRETAX> 3,521
<INCOME-TAX> 1,443
<INCOME-CONTINUING> 2,078
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,078
<EPS-PRIMARY><F1> 0.33
<EPS-DILUTED> 0.33
<FN>
<F1> The word "Primary" should be deleted and replaced with the word
"Basic".
</FN>
</TABLE>
