<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to _________________.
Commission file number 0-22317
-------
ESHARE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
GEORGIA 58-1378534
<S> <C>
(State or other Jurisdiction of Incorporation (I.R.S. Employer Identification
or Organization) Number)
</TABLE>
5051 PEACHTREE CORNERS CIRCLE
NORCROSS, GEORGIA 30092-2500
(770) 239-4330
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 issuer's classes of
common stock, as of the latest practicable date. Common stock, no par value,
outstanding as of May 4, 2,000 21,759,637 shares.
<PAGE> 2
PART 1 - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Page
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<S> <C>
Item 1. Financial Statements
Unaudited Consolidated Balance Sheets as of March 31, 2000 and December 31, 1999 3
Unaudited Consolidated Statements of Operations for the three 4
months ended March 31, 2000 and 1999
Unaudited Consolidated Statement of Cash Flows for the three months ended March 5
31, 2000 and 1999
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and 10
Results of Operations
Item 3. Quantitative and Qualitative Disclosures About Market Risk 13
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 14
Item 2. Changes in Securities 14
Item 3. Defaults Upon Senior Securities 14
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 5. Other Information 14
Item 6. Exhibits 14
Signatures 15
</TABLE>
2
<PAGE> 3
ESHARE TECHNOLOGIES, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands except share data)
(unaudited)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999(A)
-------- ------------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 15,239 $ 14,873
Accounts receivable, net of allowance for doubtful
accounts of $2,504 at March 31, 2000 and $3,014 at December 31, 1999 38,987 32,863
Inventories 1,924 1,967
Deferred taxes 4,921 4,921
Prepaid expenses and other 652 612
-------- --------
Total current assets 61,723 55,236
Property and equipment, net of accumulated depreciation 10,771 10,963
Other assets 127 98
Intangible assets, net 4,012 4,254
-------- --------
Total assets $ 76,633 $ 70,551
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,870 $ 3,343
Accrued liabilities 8,547 4,879
Deferred revenue 10,355 8,265
Other current liabilities 641 12
Current portion of notes payable 108 141
-------- --------
Total current liabilities 22,521 16,640
Notes payable, excluding current portion 59 74
Stockholders' Equity Common Stock, no par value, 100,000,000
shares authorized 21,735,420 issued and outstanding at March
31, 2000 and 21,386,714 issued and outstanding at December 31, 1999 69 69
Additional paid-in capital 60,932 59,505
Accumulated other comprehensive income (416) (28)
Retained earnings (6,532) (5,709)
-------- --------
Total stockholders' equity 54,053 53,837
-------- --------
Total liabilities and stockholders' equity $ 76,633 $ 70,551
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
(A) Amounts have been restated to reflect the acquisition of eShare.com which
was accounted for using the pooling-of-interest method (see Note 1).
3
<PAGE> 4
ESHARE TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands except for per share amounts)
(unaudited)
<TABLE>
<CAPTION>
For the three months ended
March 31,
2000 1999(A)
-------- --------
<S> <C> <C>
Net revenues:
Product $ 12,667 $ 21,111
Service 7,789 7,995
-------- --------
Total revenues 20,456 29,106
Cost of revenues:
Product 2,852 6,191
Service 4,160 4,019
-------- --------
Total cost of revenues 7,012 10,210
-------- --------
Gross margin 13,444 18,896
Operating expenses:
Research and development 2,675 3,464
Selling, general and
administrative 12,166 11,210
-------- --------
Total operating expenses 14,841 14,674
-------- --------
(Loss) Income from operations (1,397) 4,222
Other income, net 113 239
-------- --------
(Loss) Income before income taxes (1,284) 4,461
Income tax (benefit) provision (462) 1,987
-------- --------
Net (loss) income after income tax (822) 2,474
Preferred stock preference -- (5,850)
-------- --------
Loss applicable to common shareholders $ (822) $ (3,376)
======== ========
Net (loss) income per share
Basic $ (0.04) $ (0.16)
======== ========
Diluted $ (0.04) $ (0.16)
======== ========
Weighted average common and common
equivalent shares
Basic 21,435 20,567
Diluted 21,435 20,567
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
(A) Amounts have been restated to reflect the acquisition of eShare.com which
was accounted for using the pooling-of-interest method (see Note 1).
4
<PAGE> 5
ESHARE TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
---------------------
2000 1999(A)
--------- ---------
<S> <C> <C>
Cash used by operating activities:
Net Loss $ (822) $(3,376)
Adjustments to reconcile net loss to net cash provided by
(used in) operating activities:
Preferred stock preference -- 5,850
Depreciation & amortization 1,205 658
Non cash financing charges -- 16
Deferred interest expense -- 38
Non cash compensation expense -- 94
Changes in assets and liabilities:
Inventories 43 818
Accounts receivable net (6,124) (4,763)
Prepaid expenses & other current assets (40) (52)
Deferred revenue 2,090 1,574
Accounts payable & accrued expenses 3,195 (47)
Customer deposits 629 408
Current portion of long term debt 33 --
Other assets (29) (59)
------- -------
Total adjustments 1,002 4,535
------- -------
Net cash provided by operating activities 180 1,159
Cash flows from investing activities
Purchases of property & equipment (779) (1,041)
Proceeds from sale of marketable securities 4,420 (211)
------- -------
Net cash provided (used) by investing activities 3,641 (1,252)
Cash flows from financing activities
Issuance of convertible notes -- 500
Deferred offering cost (35) --
Net proceeds from issuance of common stock 1,403 4,709
Repayment of debt (15) (49)
------- -------
Net cash provided by financing activities 1,353 5,160
Effect of foreign currency translation (388) --
Net increase/decrease in cash & cash equivalents 4,786 5,067
Cash & cash equivalents at the beginning of the period 3,558 8,027
------- -------
Cash & cash equivalents at the end of the period 8,344 13,094
Short term investments 6,895 22,917
------- -------
Cash, cash equivalents & marketable securities $15,239 $36,011
======= =======
Supplemental disclosures of cash flow information:
Income taxes paid $ 11 $ 1,261
======= =======
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
(A) Amounts have been restated to reflect the acquisition of eShare.com which
was accounted for using the pooling-of-interest method (see Note 1).
5
<PAGE> 6
ESHARE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(dollar and share amounts in thousands)
(unaudited)
1. Basis of Presentation
The unaudited consolidated financial statements presented herein have been
prepared in accordance with generally accepted accounting principles applicable
to interim financial statements. Accordingly, they do not include all of the
information and notes required by generally accepted accounting principles for
complete financial statements. In the opinion of the Company's management, these
consolidated financial statements contain all adjustments (which comprise only
normal and recurring accruals) necessary to present fairly the financial
position as of March 31, 2000 and 1999. The interim results for the three months
ended March 31, 2000 are not necessarily indicative of the results to be
expected for the full year. These statements should be read in conjunction with
the Company's consolidated financial statements for the fiscal year ended
December 31, 1999, as filed in its Annual Report on Form 10-K.
On September 1, 1999, the Company acquired eShare Technologies, Inc., a Delaware
corporation ("eShare.com") for 6,050 shares of its common stock. The acquisition
was accounted for using the pooling-of-interests method of accounting and
accordingly, all prior period financial statements have been restated to reflect
that the acquisition had been completed as of the start of each period.
2. Principles of Consolidation
The accompanying financial statements include the accounts of the Company and
its wholly-owned subsidiaries. All significant inter-company balances and
transactions have been eliminated in consolidation.
3. Revenue Recognition
The Company generates product revenues primarily from the sale of integrated
systems, which are comprised of both hardware and software and software
licenses. The Company's service revenues are generated from maintenance
contracts which include support, parts and labor, and software update rights.
Service revenues also include fee-based installation, training, and consulting
services.
The Company recognizes product revenues when a contract has been executed, the
product has been shipped and the Company has no significant obligations yet to
be satisfied. The Company's sales contracts provide for certain payment terms
normally based upon signing the contract, customer receipt of the product, and
commencement of operation of the customer's system.
Revenues from maintenance contracts are recognized ratably over the term of the
contractual support period which may range up to four years. If maintenance is
included in the original integrated product contract, such amounts are unbundled
from the license fee based on the value established by independent sale of such
maintenance to customers. Consulting revenues are primarily related to
implementation services performed under separate service arrangements related to
installation. Revenues from consulting, installation, and training services are
recognized as the services are performed.
4. Acquisitions
a. eShare.com
On September 1, 1999, the Company acquired eShare.com for 6,050 shares of common
stock. The acquisition was accounted for using the pooling-of-interests method
of accounting and accordingly, all prior period financial statements have been
restated to reflect that the acquisition had been completed as of the start of
each period.
b. smallwonder! softworks, Inc.
On June 15,1999, the Company acquired smallwonder!softworks, Inc.
("smallwonder") for $4,600 in cash and a prospective earnout of up to an
additional $1,000, based on achievement of certain defined criteria. The
acquisition was accounted for using the purchase method of accounting. The
excess of the cost over the fair value of net assets acquired of $4,759 is being
amortized over 5 years.
6
<PAGE> 7
5. Preferred Stock Preference
Included in results of operations for the three months ended March 31, 1999, is
a non-recurring, non-cash charge of $5,850 which represents the difference
between the estimated fair value of common stock of eShare.com at February 19,
1999 and the purchase price of certain Series C Preferred Stock issued on that
date. As part of the acquisition, the Series C Preferred Stock was converted to
common stock.
6. Inventories
Inventories are stated at the lower of first-in, first-out (FIFO) cost or market
and consist of the following at:
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
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<S> <C> <C>
Raw materials $ 158 $ 212
Work in process 1,090 920
Finished goods 676 835
-------- --------
Total inventories $ 1,924 $ 1,967
======== ========
</TABLE>
7
<PAGE> 8
7. Loss per share
Net loss per share is computed using the weighted-average number of
common stock and diluted common stock equivalents ("CSE") shares from stock
options (using the treasury stock method) outstanding during each period. CSE's
are not included in periods where they are antidilutive.
The following table presents the components of diluted weighted average shares
outstanding.
<TABLE>
<CAPTION>
For the three months ended March 31,
2000 1999
-------- --------
<S> <C> <C>
Weighted average shares outstanding
Basic weighted average shares outstanding 21,435 20,567
Weighted average common equivalent shares -- --
-------- --------
Diluted weighted average shares outstanding 21,435 20,567
======== ========
</TABLE>
8. Other Comprehensive Income
Comprehensive income is defined as the change in equity of a business enterprise
during a period from transactions and other events and circumstances from
non-owner sources. The changes in the components of other comprehensive income
are reported as follows (in thousands):
<TABLE>
<CAPTION>
For the three months ended March 31,
2000 1999
-------- --------
<S> <C> <C>
Net loss as reported $ (822) $ (3,376)
======== ========
Other comprehensive income:
Foreign currency translation $ (406) $ 24
Unrealized gains (losses) on securities, net 18 (50)
-------- --------
Other comprehensive income $ (388) $ (26)
======== ========
</TABLE>
9. Segment Information
The Company is a multinational business operating in two segments. The Company
has adopted Statement of Financial Accounting Standards No. 131, "Disclosure
about Segments of an Enterprise and Related Information" (SFAS 131). The
adoption of SFAS 131 requires the presentation of descriptive information about
reportable segments which is consistent with that made available to the
management of the Company to assess performance. The reportable business
segments are telephony and internet. The results of these segments are as
follows (in thousands):
<TABLE>
<CAPTION>
For the three months ended March 31,
2000 1999
-------- --------
<S> <C> <C>
Revenues:
Telephony 16,334 27,544
Internet 4,122 1,562
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Total Revenues 20,456 29,106
Income (loss) from operations:
Telephony (564) 5,230
Internet (833) (1,008)
-------- --------
Total income (loss) from operations (1,397) 4,222
Depreciation & amortization
</TABLE>
8
<PAGE> 9
<TABLE>
<S> <C> <C>
Telephony 1,095 584
Internet 110 74
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Total depreciation & amortization 1,205 658
Deferred compensation expense:
Telephony -- --
Internet -- 94
-------- --------
Total deferred compensation expense -- 94
</TABLE>
The following represents total revenues and long-lived assets of the
Company based on geographic location representing over 10% of the combined
totals for the three months ended March 31, 2000 and 1999:
<TABLE>
<CAPTION>
For the three months ended March 31,
2000 1999
------ ------
<S> <C> <C>
United States:
Total revenues 16,578 20,834
Long-lived assets 10,363 7,962
Europe:
Total revenues 2,640 3,202
Long-lived assets 382 256
Mexico/Latin America:
Total revenues 626 3,386
Long-lived assets 25 64
Other:
Total revenues 612 1,684
Long-lived assets 1 2
</TABLE>
9
<PAGE> 10
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (dollar and share amounts in thousands)
Overview
eShare Technologies, Inc., f/k/a Melita International Corporation (the
"Company"), along with its recently acquired wholly-owned subsidiaries; eShare
Technologies, Inc. ("eShare.com") and smallwonder! softworks, Inc.
("smallwonder"), is a leading provider of unified web and telephony customer
communications solutions for customer contact centers, e-commerce and online
communities.
On September 1, 1999, the Company acquired eShare.com for 6,050 shares of common
stock. The acquisition was accounted for using the pooling-of-interests method
of accounting and accordingly, all prior period financial information has been
restated to reflect that the acquisition had been completed as of the start of
each period presented.
On June 15, 1999, the Company acquired smallwonder, for $4,600 in cash and a
prospective earnout of an additional $1,000, based on achievement of certain
defined criteria. The acquisition was accounted for utilizing the purchase
method of accounting and accordingly, results have been included from the date
of the acquisition. The excess of the cost over the fair value of net assets
acquired of $4,759 is being amortized over 5 years.
Certain statements contained in this filing are "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995,
including but not limited to statements related to plans for future business
development activities, anticipated costs of revenues, product mix and service
revenues, research and development and selling, general and administrative
activities, and liquidity and capital needs and resources. Such forward-looking
statements are subject to risks, uncertainties and other factors which could
cause actual results to differ materially from future results expressed or
implied by such forward-looking statements. Investors are cautioned that any
forward looking statements are not guarantees of future performance and involve
risks and uncertainties, and that actual results may differ materially from
those contemplated by such forward looking statements. A discussion of certain
risk factors that may cause actual results to differ from these forward-looking
statements can be found in Exhibit 99.1 to eShare Technologies' Annual Report on
Form 10-K for the period ended December 31, 1999, on file with the SEC.
Results of Operations
Revenues
Product. For the three months ended March 31, 2000, product revenues
decreased $8,444 or 40.0% to $12,667 from $21,111 in the comparable prior year
period. Revenues from the Company's telephony products decreased $10,597, or
53.4%, to $9,231 principally due to continued slowdowns in purchasing and
ongoing pricing pressures within the call center industry. This reduction was
partially offset by an increase in Internet product revenues of $2,153, an
increase of 167.8%, to $3,436 resulting from increased market acceptance of our
Internet customer interaction products.
Service. Service revenues decreased by $206, or 2.6% to $7,789 for the
three months ended March 31, 2000 from $7,995 in the comparable prior year
period. The decline resulted from a decrease in installation and training
revenue as a result of reduced product sales in telephony products, partially
offset by increases in consulting services and hosting revenues.
Cost of Revenues
Product The cost of product revenues include the cost of material,
personnel-related cost for product assembly, fees paid to third parties for
outsourced product assembly and, in certain instances, the cost of sublicensing
third-party software. Cost of product revenues for the three months ended March
31, 2000 decreased to $2,852 or 22.5% from $6,191 or 29.3% of related product
revenues in the comparable prior year period. This decrease in absolute dollars
in the cost of product revenues was due to the decline in telephony product
revenues. This decrease as a percentage of product revenues was a result of a
higher percentage of Internet products in total product revenues from the prior
year. Cost of revenues for Internet products is much lower than telephony
products due to the fact that they do not include related hardware. The decrease
also reflects a higher software content in our telephony products.
Service The cost of service revenues primarily consist of
employee-related costs for customer support, consulting and field service
personnel and fees paid to third parties for installation services and post
installation hardware maintenance services. Cost of service revenues increased
to $4,160 or 53.4% of the related service revenues for the three months ended
March 31, 2000 from $4,019 or 50.3% of related service revenues for the
comparable prior year period. The increase in absolute dollars related to the
addition of personnel to support our expanding customer base. The increase as a
percentage of service revenues was due to the decline in related revenues.
10
<PAGE> 11
Operating Expenses
Engineering, research and development Engineering, research and
development expenses primarily consist of employee-related costs for engineering
personnel involved with Internet and telephony software development. Also
included are outside contractor costs for development projects. Engineering,
research and development costs decreased to $2,675, or 13.1% of total revenues
for the three months ended March 31, 2000 from $3,464, or 11.9% of total
revenues in the comparable prior year period. The decrease resulted primarily
from a reduced labor force in our telephony development efforts partially offset
by increases in our Internet development efforts. The increase as a percentage
of total revenues was primarily a factor of reduced telephony product revenues.
The Company intends to continue to invest heavily in product development
activities, especially for our Internet solutions. As a result, the Company
expects that engineering, research and development costs will increase in the
future.
Selling, general and administrative Selling, general and administrative
expenses consist primarily of employee-related costs for sales, marketing,
administrative, finance and human resources personnel. Also included are
marketing expenditures for trade shows, advertising and other promotional
expenditures. Selling, general and administrative costs increased to $12,166, or
59.5% of revenues for the three month period ended March 31, 2000 from $11,210,
or 38.5% of revenues in the comparable prior year period. This increase is
primarily related to the expansion of our sales and marketing resources and
increased levels of marketing activities. The Company intends to continue
expanding our sales, marketing and sales support operations principally related
to our Internet products and the introduction of our customer interaction
management suite of products. As a result, the Company expects selling, general
and administrative costs will increase in the future.
Other Income (Expense), Net Other income (expense), net decreased to
$113 for the three month period ended March 31, 2000 from $239 for the
comparable prior year period. These decreases resulted from reduced interest
income earned on lower average investments in marketable securities.
Income Tax Provision (Benefit) For the three months ended March 31,
2000, the Company recorded a tax benefit of $0.5 million as compared to a tax
provision of $2.0 million for the three months ended March 31, 1999.
FINANCIAL CONDITION
Total assets as of March 31, 2000, were $76,633, an increase over
total assets of $70,551 at December 31, 1999. This increase is primarily due to
an increase in cash and accounts receivable.
Current liabilities were $22,521 at March 31, 2000, up from $16,640 at
December 31, 1999. This increase is due primarily to an increase in accrued
liabilities which was impacted by the receipt of a $3.2 million refund of
estimated taxes in the first quarter of 2000 and an increase in deferred
revenues.
LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 2000, the Company had $15,239 in cash, cash equivalents and
marketable securities, compared to $14,873 as of December 31, 1999. The increase
in cash is primarily due to the receipt of a refund of estimated taxes of $3.2
million and partially offset by an increase in accounts receivable. Cash
provided by investing activities included the sale of $4,420 of marketable
securities, offset by purchases of property and equipment of $779. Net cash
provided by financing activities of $1,353 was primarily due to the proceeds of
issuance of common stock through the company sponsored option program and
employee stock purchase plan. The Company's working capital was $39,202 for the
period ending March 31, 2000 as compared to $38,596 for period ending December
31, 1999. The Company anticipates that existing cash and cash equivalents will
be adequate to meet its cash requirements for the next twelve months.
11
<PAGE> 12
IMPACT OF THE YEAR 2000 ISSUE
We do not currently believe that the effects of any Year 2000 non-compliance in
our installed base of software will adversely affect our business, financial
condition and results of operations. However, no assurance can be given that we
will not be exposed to potential claims resulting from system problems
associated with the century change which have not manifested themselves. We
developed contingency plans for business functions that are susceptible to a
substantive risk of disruption resulting from a Year 2000 related event,
including installation of backup power generation capability at our corporate
headquarters. We did not experience any material failures in business functions
as a result of Year 2000.
12
<PAGE> 13
ITEM 3. Quantitative and Qualitative Disclaimers About Market Risk.
Foreign Exchange
During the three months ended March 31, 2000, total revenues for the
Company's international operations were approximately 19.0% of the Company's
total revenues for all operations.
The Company's international business is subject to risks typical of an
international business, including, but not limited to: differing economic
conditions, changes in political climate, differing tax structures, other
regulations and restrictions, and foreign exchange rate volatility. Accordingly,
the Company's future results could be materially adversely impacted by changes
in these or other factors. The effect of foreign exchange rate fluctuations on
the Company during the first quarter of 2000 was not material.
Interest Rates
The Company invests its cash in a variety of financial instruments,
including taxable and tax-advantaged variable rate and fixed rate obligations of
corporations, municipalities, and local, state and national governmental
entities and agencies. These investments are denominated in U.S. dollars. Cash
balances in foreign currencies overseas are operating balances.
Interest income on the Company's investments is carried in "Other
income (expense), net" on the Consolidated Financial Statements. The Company
accounts for its investment instruments in accordance with Statement of
Financial Accounting Standards No. 115, "Accounting for Certain Investments in
Debt and Equity Securities" ("SFAS 115"). All of the cash equivalents and
short-term investments are treated as available-for-sale under SFAS 115.
Investments in both fixed rate and floating rate interest earning
instruments carry a degree of interest rate risk. Fixed rate securities may have
their fair market value adversely impacted due to a rise in interest rates,
while floating rate securities may produce less income than expected if interest
rates fall. Due in part to these factors, the Company's future investment income
may fall short of expectations due to changes in interest rates, or the Company
may suffer losses in principal if forced to sell securities which have seen a
decline in market value due to changes in interest rates. The weighted-average
interest rate on investment securities at March 31, 2000 was approximately 3.84%
based on predominately tax free instruments. The fair value of securities held
at March 31, 2000 was $6.9 million.
13
<PAGE> 14
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Many of the Company's installations involve products that are critical
to the operations of its clients' businesses. Any failure in a Company
product could result in a claim for substantial damages against the Company,
regardless of the Company's responsibility for such failure. Although the
Company attempts to limit contractually its liability for damages arising
from product failures or negligent acts or omissions, there can be no
assurance the limitations of liability set forth in its contracts will be
enforceable in all instances. The Company is not currently party to any
material legal proceedings.
Item 2. Changes in Securities.
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 5. Other Information.
None
Item 6. Exhibits.
<TABLE>
<S> <C> <C>
(a) Exhibit 10.1 Lease Agreement between the Company and Heartland Associates dated March 31, 2000.
(b) Exhibit 27 Financial Data Schedule (for SEC use only).
</TABLE>
14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ESHARE TECHNOLOGIES, INC.
Date: May 15, 2000 By: /s/ Aleksander Szlam
--------------------
Aleksander Szlam
Chairman and Chief Executive Officer
Date: May 15, 2000 By: /s/ George Landgrebe
---------------------
George Landgrebe
Vice President, Administration and
Chief Financial Officer
15
<PAGE> 1
2/94
STANDARD FORM OF LOFT LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 31st day of March 2000, between Heartland
Associates, 1 Executive Drive, Edgewood, New York 11717 party of the first
part, hereinafter referred to as owner, and/Landlord and eShare Technologies,
Inc., a corporation duly organized and existing under the law of the state of
Georgia with an office at 5051 Peachtree Corners Circle, Norcross, Georgia
30092 party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
those certain premises as more particularly cross-hatched in red on Exhibit "A"
attached to and made part of this Lease in the building known as 425 Oser
Avenue, Hauppauge, New York, for the term (or until such term shall sooner cease
and expire as hereinafter provided) to commence on the 15th day of June two
thousand, and to end on the 30th day of June two thousand six and both dates
inclusive, at an annual rental rate as more particularly set forth in paragraph
41 of the rider attached to and made part of this Lease which Tenant agrees to
pay in lawful money of the United States which shall be legal tender in payment
of all debts and dues, public and private, at the time of payment, in equal
monthly installments in advance on the first day of each month during said term,
at the office of Owner or such other place as Owner may designate, without any
set off or deduction whatsoever, except that Tenant shall pay the first _____
monthly installment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
hereby covenant as follows:
RENT:
1. Tenant Shall Pay The Rent As Above And As Hereinafter Provided.
OCCUPANCY:
2. Tenant shall use and occupy demised premises for general
office use.
(continued at rider paragraph 51 (A))
ALTERATIONS:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent which consent shall not be unreasonably
withheld for non-structural items. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant, at Tenant's expense, may
make alterations, installations, additions or improvements which are
nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved in each instance by Owner. Tenant shall,
at its expense, before making any alterations, additions, installations or
improvements obtain all permits, approval and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner. Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such workman's
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days thereafter,
at Tenant's expense, by payment or filing the bond required by law or otherwise.
All fixtures and all paneling, partitions, railings and like installations,
installed in the premises at any time, either by Tenant or by Owner on Tenant's
behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises unless Owner, by notice to
Tenant no later than twenty days prior to the date fixed as the termination of
this lease, elects to relinquish Owner's right thereto and to have them removed
by Tenant, in which event the same shall be removed from the demised premises by
Tenant prior to the expiration of the lease, at Tenant's expense. Nothing in
this Article shall be construed to give Owner title to or to prevent Tenant's
removal of trade fixtures, moveable office furniture and equipment, but upon
removal of any such from the premises or upon removal of other installations as
may be required by Owner, tenant shall immediately and at its expense, repair
and restore the premises to the condition existing prior to installation and
repair any damage to the demised premises or the building due to such removal.
All property permitted or required to be removed by Tenant at the end of the
term remaining in the premises after Tenant's removal shall be deemed abandoned
and may, at the election of Owner, either be retained as Owner's property or
removed from the premises by Owner, at Tenant's expense.
REPAIRS: 4. Owner shall maintain and repair the public portions of the building.
Tenant shall, throughout the term of this lease, take good care of the demised
premises including the bathrooms and lavatory facilities and the windows and
window frames and, the fixtures and appurtenances therein and at Tenant's sole
cost and expense promptly make all repairs thereto and to the building, whether
structural or non-structural in nature, caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees, and whether or not arising from
such Tenant conduct or omission, when required by other provisions of this
lease, including Article 6. Tenant shall also repair all damage to the building
and the demised premises caused by the moving of Tenant's fixtures, furniture or
equipment. All the aforesaid repairs shall be of quality or class equal to the
original work or construction. If the demised premises be or become infested
with vermin, Tenant shall, at its expense, cause the same to be exterminated.
Tenant shall give Owner prompt notice of any defective condition in any
plumbing, heating system or electrical lines located in the demised premises and
following such notice, Owner shall remedy the condition with due diligence, but
at the expense of Tenant, if repairs are necessitated by damage or injury
attributable to Tenant, Tenant's servants, agents, employees, invitees or
licensees as aforesaid. Except as specifically provided in Article 9 or
elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall not be entitled to any set off or reduction of rent by
reason of any failure of Owner to comply with the covenants of this or any other
article of this lease. Tenant agrees that Tenant's sole remedy at law in such
instance will be by way of any action for damages for breach of contract. The
provisions of this Article 4 with respect to the making of repairs shall not
apply in the case of fire or other casualty with regard to which Article 9
hereof shall apply.
WINDOW CLEANING:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the New York State Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter Tenant shall, at Tenant's sole cost and expense,
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, or the
Insurance Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises, whether
or not arising out of Tenant's use or manner of use thereof, or, with respect to
the building, if arising out of Tenant's use or manner of use of the demised
premises of the building (including the use permitted under the lease). Except
as provided in Article 30 hereof, nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant shall not do or
<PAGE> 2
permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for
the benefit of Owner. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in affect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
leased by a body making fire insurance rates applicable to said premises shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position
of all safes, business machines and mechanical equipment. Such installations
shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient, in Owner's judgement, to absorb and prevent vibration, noise and
annoyance.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such
subordination, Tenant shall from time to time execute promptly any certificate
that Owner may request.
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage
to persons or property resulting from any cause of whatsoever nature, unless
caused by or due to the negligence of Owner, its agents, servants or employees;
Owner or its agents shall not be liable for any damage caused by other tenants
or persons in, upon or about said building or caused by operations in
connection of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up) if required by law), Owner
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor abatement or diminution of
rent nor shall the name release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorney's fees, paid, suffered or incurred as a result of any
breach by Tenant, Tenant's agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, or the carelessness,
negligence or improper conduct of the Tenant, Tenant's agents, contractors,
employees, invitees or licensees. Tenant's liability under this lease extends
to the acts and omissions of any sub-tenant, and any agent, contractor,
employee, invitee or licensee of any sub-tenant. In case any action or
proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by
and at the expense of Owner and the rent and other items of additional rent,
until such repair shall be substantially completed, shall be apportioned from
the day following the casualty according to the part of the premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent and other items of additional
rent as hereinafter expressly provided shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored by Owner (or sooner reoccupied
in part by Tenant then rent shall be apportioned as provided in subsection (b)
above), subject to Owner's right to elect not to restore the same as
hereinafter provided. (d) If the demised premises are rendered wholly unusable
or (whether or not the demised premises are damaged in whole or in part) if the
building shall be so damaged that Owner shall decide to demolish it or to
rebuild it, then, in any of such events, Owner may elect to terminate this
lease by written notice to Tenant, given within 90 days after such fire or
casualty, or 30 days after adjustment of the insurance claim for such fire or
casualty, whichever is sooner, specifying a date for the expiration of the
lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth above
for the termination of this lease and Tenant shall forthwith quit, surrender
and vacate the premises without prejudice however, to Owner's rights and
remedies against Tenant under the lease provisions in effect prior to much
termination, and any rent owing shall be paid up to such date and any payments
of rent made by Tenant which were on account of any period subsequent to such
date shall be returned to Tenant. Unless Owner shall serve a termination notice
as provided for herein, Owner shall make the repairs and restorations under the
conditions of (b) and (c) hereof, with all reasonable expedition, subject to
delays due to adjustment of insurance claims, labor troubles and causes beyond
Owner's control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall reserve five (5) days after
written notice from Owner that the premises are substantially ready for
Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, including Owner's obligation to restore under
subparagraph (b) above, each party shall look first to any insurance in its
favor before making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right or recovery with respect
to subparagraphs (b), (d) and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/or to any personal property, equipment, trade fixtures,
goods and merchandise located therein. The foregoing release and waiver shall
be in force only if both releasors' insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance. If,
and to the extent, that such waiver can be obtained only by the payment of
additional premiums, then the party benefiting from the waiver shall pay such
premiums within ten days after written demand or shall be deemed to have agreed
that the party obtaining insurance coverage shall be free of any further
obligation under the provisions hereof with respect to waiving of subrogation.
Tenant acknowledges that Owner will not carry insurance on Tenant's furniture
and or furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same. (f) Tenant hereby waives the provisions
of Section 227 of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
EMINENT DOMAIN:
10. If the whole of the demised premises shall be acquired or condensed by
Eminent Domain for any public or quasi public use or purpose, then and in that
event, the term of this lease shall cease and terminate from the date of title
vesting in such proceeding and Tenant shall have no claim for the value of any
unexpired term of said lease. Tenant shall have the right to make an
independent claim to the condemning authority for the value of Tenant's moving
expenses and personal property, trade fixtures and equipment, provided Tenant
is entitled pursuant to the terms of the lease to remove such property, trade
fixtures and equipment at the end of the term and provided further such claim
does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.:
11. If this lease be assigned, or if the demised premises or any part thereof
be underlet or occupied by anybody other than Tenant, Owner may, after default
by Tenant, collect rent from the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collections shall be deemed a waiver of this
covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further
assignment or underletting.
ELECTRIC CURRENT:
12. Rates and conditions in respect to submetering or rent inclusions, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and
Tenant may not use any electrical equipment which, in Owner's opinion,
reasonably exercised, will overload such installations or interfere with the
use thereof by other tenants of the building. The change at any time of the
character of electric service shall in no wise make Owner liable or responsible
to Tenant, for any loss, damages or expenses which Tenant may sustain.
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time/without notice, and, at
other reasonable times, with reasonable prior notice (which notice may be by
telephone), to examine the name and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to any portion
of the building or for the purpose of complying with laws, regulations and other
directions of governmental authorities. Tenant shall permit Owner to use and
maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein provided, wherever possible, they are
within walls or otherwise concealed. Owner may, during the progress of any work
in the demised premises, take all necessary materials and equipment into said
premises without the same constituting an eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Throughout
the term hereof Owner shall have the right to enter the demised premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgagees of the building, and during the last six months of the term for
the purpose of showing the same to prospective tenants and may, during said six
months period, place upon
<PAGE> 3
the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible
by master key or forcibly (only in the event of an emergency) and provided
reasonable care is exercised to safeguard Tenant's property, such entry shall
not render Owner or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom. Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring
liability to Tenant for any compensation and such act shall have no effect on
this lease or Tenant's obligation hereunder.
VAULT, VAULT SPACE, AREA:
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner's work, if any. In
any event, Owner makes no representation as to the condition of the premises
and Tenant agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant shall be responsible for and
shall procure and maintain such license or permit.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of
the premises demised but shall forthwith quit and surrender the premises. If
this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owning Tenant's
interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted "or if this lease be rejected under
ss. 235 of Title 11 of the U.S. Code (bankruptcy code);" or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant;
or if Tenant shall make default with respect to any other lease between Owner
and Tenant; or if Tenant shall have failed, after five (5) days written notice,
to redeposit with Owner any portion of the security deposited hereunder which
Owner has applied to the payment of any real and additional rent due and
payable hereunder or failed to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, of
which fact Owner shall be the sole judge; then in any one or more of such
events, upon Owner serving a written twenty (20) days notice upon Tenant
specifying the nature of said default and upon the expiration of said twenty
(20) days, if Tenant shall have failed to comply with or remedy such default,
or if the said default or omission complained of shall be of a nature that the
same cannot be completely cured or remedied within said twenty (20) day period,
and if Tenant shall not have diligently commenced during such default within
such twenty (20) day period, and shall not thereafter with reasonable diligence
and in good faith, proceed to remedy or cure such default, then Owner may serve
a written five (5) days' notice of cancellation of this lease upon Tenant, and
upon the expiration of said five (5) days this lease and the term thereunder
shall end and expire as fully and completely as if the expiration of such five
(5) day period were the day herein definitely fixed for the end and expiration
of this lease and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as hereinafter
provided.
(2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, Owner may cancel and terminate such
renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the parts of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease, (c)
Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting,
such as legal expenses, reasonable attorneys' fees, brokerage, advertising and
for keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments
by Tenant on the rent day specified in this lease and any suit brought to
collect the amount of the deficiency for any month shall not prejudice in any
way the rights of Owner to collect the deficiency for any subsequent month by a
similar proceeding. Owner, in putting the demised premises in good order or
preparing the same for re-rental may, at Owner's option, make such alterations,
repairs, replacements, and/or decorations in the demised premises as Owner, in
Owner's sole judgment, considers advisable and necessary for the purpose of
re-letting the demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Owner shall in no event be liable
in any way whatsoever for failure to re-let the demised premises, or in the
event that the demised premises are re-let, for failure to collect the rent
thereof under such re-letting, and in no event shall Tenant be entitled to
receive any excess, if any, of such net rents collected over the sums payable
by Tenant to Owner hereunder. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, Owner shall have the right
of injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall not preclude Owner
from any other remedy, in law or in equity. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of
any of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent
hereunder, makes any expenditures or incurs any obligations for the payment of
money, including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceedings, then Tenant will reimburse
Owner for such sums so paid or obligations incurred with interest and costs.
The foregoing expenses incurred by reason of Tenant's default shall be deemed
to be additional rent hereunder and shall be paid by Tenant to Owner within ten
(10) days of rendition of any bill or statement to Tenant therefor. If Tenant's
lease term shall have expired at the time of making of such expenditures or
incurring of such obligations, such sums shall be recoverable by Owner as
damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition
of any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
<PAGE> 4
NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building
and the demised premises an is thoroughly acquainted with their condition and
agrees to take the same "as is" on the date possession is tendered and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between
Owner and Tenant and any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of it in
whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday unless it
be a legal holiday in which case it shall expire at noon on the preceding
business day.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give possession of the demised premises on the date
of the commencement of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any liability for
failure to give possession on said date and the validity of the lease shall not
be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession or complete any work required) until after Owner shall have given
Tenant notice that Owner is able to deliver possession in the condition
required by this lease. If permission is given to Tenant to enter into the
possession of the demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such possession and/or occupancy shall
be deemed to be under all the terms, covenants, conditions and provisions of
this lease, except the obligation to pay the fixed annual rent set forth in
page one of this lease. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent with knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed as
accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. All checks tendered to Owner as and for
the rent of the demised premises shall be deemed payments for the account of
Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not be
deemed to operate as an attornment to Owner by the payor of such rent or as a
consent by Owner to an assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of this lease.
No act or thing done by Owner or Owner's agents during the term hereby demised
shall be deemed an acceptance of a surrender of said premises and no agreement
to accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premies, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any proceeding or action for possession
including a summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims.
INABILITY TO PERFORM:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures or other materials if Owner is prevented or delayed from doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a bill statement, notice or
communication which Owner may desire or be required to give to Tenant, shall
be deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such bill or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first
hereinabove given or at such other address as Owner shall designate by written
notice.
WATER CHARGES:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner to be the
sole judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation, thereof and throughout the duration of
Tenant's occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense in default of
which Owner may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as additional rent. Tenant agrees to pay
for water consumed, as shown on said meter as and when bills are rendered, and
on default in making such payment Owner may pay such charges and collect the
same from Tenant, as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent, levy or charge
which now or hereafter is assessed, imposed or a lien upon the demised premises
or the realty of which they are part pursuant to law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water systems or sewage or sewage connection or system. If the building or the
demised premises or any part thereof is supplied with water through a meter
through which water is also supplied to other premises Tenant shall pay to
Owner, as additional rent, Tenant's Share, as and when billed, of the total
meter charges as Tenant's portion. Independently of and in addition to any of
the remedies reserved to Owner hereinabove or elsewhere in this lease, Owner
may sue for and collect any monies to be paid by Tenant or paid by Owner for
any of the reasons or purposes hereinabove set forth.
SPRINKLERS:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire Insurance
rate set by any said Exchange or by any fire Insurance company, Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent Tenant's
Share, as and when billed during the term of this lease, as Tenant's portion of
the contract price for sprinkler supervisory alarm and maintenance service.
ELEVATORS, HEAT, CLEANING:
31. As long as Tenant is not in default under any the covenants of this lease
beyond the applicable grace period, provided in this lease for the curing of
such defaults, Owner shall:
<PAGE> 5
(d) clean the public halls and public portions of the building which are used
in common by all tenants. Tenant shall, at Tenant's expense, keep the demised
premises, including the windows, clean and in order, to the reasonable
satisfaction of Owner, and for that purpose shall employ the person or persons,
or corporation approved by Owner. Tenant shall pay to Owner the cost of removal
of any of Tenant's refuse and rubbish from the building. Bills for the same
shall be rendered by Owner to Tenant at such time as Owner may elect and shall
be due and payable hereunder, and the amount of such bills shall be deemed to
be, and be paid as, additional rent. Tenant shall, independently contract for
the removal of such rubbish and refuse. Under such circumstances, however, the
removal of such refuse and rubbish by others shall be subject to such rules and
regulations as, in the judgment of Owner, are necessary for the proper operation
of the building. Owner reserves the right to stop service of the heating,
elevator, plumbing and electric systems, when necessary, by reason of accident,
or emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner may proceed diligently with alterations necessary to
substitute automatic control elevator service without in any way affecting the
obligations of Tenant hereunder.
SECURITY:
32. Tenant has deposited with Owner the sum of $40,000.00 as security for
the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease; It is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease,
including, but not limited to, the payment of rent and additional rent, Owner
may use, apply or retain the whole or any part of the security so deposited to
the extent required for the payment of any rent and additional rent or any
other sum as to which Tenant is in default or for any sum which Owner many
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the reletting of the premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant thirty (30) days after the date fixed as
the end of the Lease and after delivery of entire possession of the demised
premises to Owner. In the event of a sale of the land and building or leasing
of the building, of which the demised premises form a part, Owner shall have the
right to transfer the security to the vendee or lessee and Owner shall thereupon
be released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of said security,
and it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Owner. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Owner nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
CAPTIONS:
33. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
DEFINITIONS:
34. The term "Owner" as used in this lease means only the owner of the
fee or of the leasehold of the building, or the mortgagee in possession, for
the time being of the land and building (or the owner of a lease of the
building or of the land and building) of which the demised premises form a
part, so that in the event of any sale or sales of said land and building or of
said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "rent" includes the annual rental rate whether so expressed or
expressed in monthly installments, and "additional rent." "Additional rent"
means all sums which shall be due to Owner from Tenant under this lease, in
addition to the annual rental rate. The term "business days" as used in this
lease, shall exclude Saturdays, Sundays and all days observed by the State or
Federal Government as legal holidays and those designated as holidays by the
applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service. Wherever
it is expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
ADJACENT EXCAVATION-SHORING:
35. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form
a part from injury or damage and to support the same by proper foundations
without any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
RULES AND REGULATIONS:
36. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the
parties hereto. The right to dispute the reasonableness of any additional Rule
or Regulation upon Tenant's part shall be deemed waived unless the same shall
be asserted by service of a notice, in writing upon Owner within thirty (30)
days after the giving of notice thereof. Nothing in this lease contained shall
be construed to impose upon Owner any duty or obligation to enforce the Rules
and Regulations or terms, covenants or conditions in any other lease, as against
any other tenant and Owner shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
GLASS:
37. Tenant shall replace, at the expense of the Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and about the
demised premises. Tenant shall insure, and keep insured, at Tenant's expense,
all plate and other glass in the demised premises for and in the name of Owner.
ESTOPPEL CERTIFICATE
38. Tenant, at any time, and from time to time, upon at least 10 days'
prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or
to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified in full force and effect ( or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent
and additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default and
stating such other matters as may reasonably be requested.
DIRECTORY BOARD LISTING:
39. If, at the request of and as accommodation to Tenant, Owner shall
place upon the directory board in the lobby of the building, one or more names
of persons other than Tenant, such directory board listing shall not be
construed as the consent by Owner to an assignment or subletting by Tenant to
such person or persons.
SUCCESSORS AND ASSIGNS:
40. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
A rider consisting of 34 pages is attached hereto and made part hereof.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
OWNER/LANDLORD:
Witness for Owner: HEARTLAND ASSOCIATES [CORP. SEAL]
-------------------------
By: /s/ Gerald Wolkoff [L.S.]
- ----------------------------------- -------------------------
Gerald Wolkoff, partner
TENANT:
Witness for Tenant eShare Technologies, Inc. [CORP. SEAL]
-------------------------
/s/ By: /s/ [L.S.]
- ----------------------------------- -------------------------
<PAGE> 6
ACKNOWLEDGEMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this _____ day of _________, 19___, before me personally came
__________________________ to me known, who being by me duly sworn, did depose
and say the he resides in __________________________ that he is the
____________________ of __________________ the corporation described in and
which executed the foregoing instrument, as TENANT; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this _____ day of _________, 19___, before me personally came
__________________________ to be known and known to me to be the individual
described in and who, as TENANT, executed the foregoing instrument and
acknowledged to me that ____________________________ he executed the same.
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rag or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors of halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and or vibrations, or interfere in any way, with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the demised premises or the building or on the inside of the demised
premises if the same is visible from the outside of the premises without the
prior written consent of Owner, except that the name of Tenant may appear on
the entrance door of the premises. In the event of the violation of the
foregoing by any Tenant, Owner may remove same without any liability and may
charge the expense incurred by such removal to Tenant or Tenants violating this
rule. Interior signs on doors and directory tablet shall be inscribed, painted
or affixed for each Tenant by Owner at the expense of such Tenant, and shall be
of a size, color and style acceptable to Owner.
6. No Tenant shall mark, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner, and as Owner may direct. No Tenant shall lay
linoleum, or other similar floor covering, so that the same shall come in direct
contact with the floor of the demised premises, and, if linoleum or other
similar floor covering is desired to be used in interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
7. Each Tenant must, upon the termination of his Tenancy, restore to
Owner all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such Tenant, and in the event of the loss of any keys, so
furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease of which these Rules and Regulations are a part.
9. Canvasing, soliciting and peddling in the building is prohibited
and each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from building all persons who
do note present a pass to the building signed by Owner. Owner will furnish
passes to persons for whom any Tenant requests same in writing. Each Tenant
shall be responsible for all persons for whom he requests such pass and shall
be liable to Owner for all acts of such persons. Tenant shall not have a claim
against Owner by reason of Owner excluding from the building any person who
does not present such pass.
11. Owner shall have the right to prohibit any advertising by any
Tenant which in Owner's opinion, tends to impair the reputation of the building
or its desirability as a loft building, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible, or explosive or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any annual or other objectionable odors to permeate in or
emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which
disturbs or interferes with other Tenants in the beneficial use of their
premises.
Address
Premises
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TO
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STANDARD FORM OF
[logo] LOFT LEASE [logo]
THE REAL ESTATE BOARD OF NEW YORK, INC.
(c) Copyright 1994. All rights Reserved.
Reproduction in whole or in part prohibited.
===============================================================================
Dated ___________________________________________________________________ 19 ___
Rent Per Year __________________________________________________________________
Rent Per Month _________________________________________________________________
Term
From
To
Drawn by ......................................................................
Checked by ....................................................................
Entered by ....................................................................
Approved by ...................................................................
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<PAGE> 7
RIDER ANNEXED TO AND MADE PART OF THE LEASE, ("Lease"), dated the 31st
day of March, 2000, between HEARTLAND ASSOCIATES, as Landlord/Owner, and eShare
Technologies, Inc., as Tenant.
41. Rent:
A. During the full term of this Lease Tenant covenants to and shall pay
Landlord annual base rent ("Base Rent") at the annual base rates as set
forth below, in equal monthly installments in advance on the first day
of each month during said term, without any demand therefor and without
any setoff or deduction whatsoever, as follows:
(i) For any period of occupancy prior to July 1, 2000, Tenant
shall pay for all utilities at the premises and for Tenant's
Share of Common Area Costs (as hereinafter defined) but no
Base Rent shall be due.
(ii) For the Lease Year (for the purposes hereof, "Lease Year"
shall be defined as twelve (12) consecutive calendar months,
the first Lease Year commencing July 1, 2000) July 1, 2000
through June 30, 2001, Base Rent shall be three hundred
thousand and 00/100 ($300,000.00) Dollars, payable twenty-five
thousand and 00/100 ($25,000.00) Dollars monthly.
(iii) For the Lease Year July 1, 2001 through June 30, 2002, Base
Rent shall be four hundred seventy-four thousand four hundred
and 00/100 ($474,400.00) Dollars, payable thirty-nine thousand
five hundred thirty-three and 33/100 ($39,533.33) Dollars
monthly.
(iv) For the Lease Year July 1, 2002 through June 30, 2003, Base
Rent shall be four hundred eighty-eight thousand six hundred
thirty-two and 00/100 ($488,632.00) Dollars, payable forty
thousand seven hundred nineteen and 33/100 ($40,719.33)
Dollars monthly.
(v) For the Lease Year July 1, 2003 through June 30, 2004, Base
Rent shall be five hundred three thousand two hundred ninety
and 96/100 ($503,290.96) Dollars, payable forty-one thousand
nine hundred forty and 91/100 ($41,940.91) Dollars monthly.
(vi) For the Lease Year July 1, 2004 through June 30, 2005, Base
Rent shall be five hundred eighteen thousand three hundred
eighty-nine and 68/100 ($518,389.68) Dollars, payable
forty-three thousand one hundred ninety-nine and 14/100
($43,199.14) Dollars monthly.
(vii) For the Lease Year July 1, 2005 through June 30, 2006.
<PAGE> 8
Base Rent shall be five hundred thirty-three thousand nine hundred
forty-one and 37/100 ($533,941.37) Dollars, payable forty-four
thousand four hundred ninety-five and 11/100 ($44,495.11) Dollars
monthly.
B. Tenant, without any requirement of prior notice to Tenant, agrees to
pay a late payment and administrative charge of five (5%) percent of
the total monthly rental due, including any and all additions to Base
Rent, if the Base Rent is not paid when due and such nonpayment
continues beyond the tenth (10th) day of the month. Such late payment
and administrative charge shall be due as additional rent, shall be in
addition to all of Landlord's other rights and remedies hereunder in
the event of Tenant's default, and shall be payable with the rent to
which it pertains. Tenant further agrees that the late payment and
administrative charge imposed is fair and reasonable, complies with all
laws, regulations and statutes, and constitutes an agreement between
Landlord and Tenant as to the estimated compensation for costs and
administrative expenses incurred by Landlord due to the late payment of
rent to Landlord by Tenant. Tenant further agrees that the late payment
and administrative charge assessed pursuant to this Lease is not
interest, and the late payment and administrative charge does not
constitute a lender or borrower/creditor relationship between Landlord
and Tenant. Acceptance of such late payment and administrative charge
by Landlord shall in no event constitute a waiver of Tenant's default
with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder. In
the event that a late payment and administrative charge is payable
hereunder, whether or not collected, for three (3) consecutive
installments of Base Rent, then Base Rent shall automatically become
due and payable quarterly in advance, rather than monthly,
notwithstanding any other provision of this Lease to the contrary.
Furthermore, in the event any check delivered to Landlord in payment of
any amount due under this Lease is returned uncollected, for
non-sufficient funds, or for any like reason, in addition to any and
all remedies available to Landlord, Tenant agrees to pay Landlord, as
additional rent, the sum of $20.00 to compensate Landlord for the
additional administrative cost and expense incurred by Landlord by
reason of such check. In the event Tenant shall be
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served with a demand for the payment of any past due amount under this
Lease, any payments tendered thereafter to cure any default by Tenant
shall be made only by cashier's or certified check.
C. Except to the extent expressly otherwise set forth in this Lease,
Tenant is to be fully responsible, liable and is to pay for all fees,
assessments, expenses, insurance, repairs, both interior and exterior,
nonstructural, and any other charges for the demised premises.
D. For the purposes of this Lease, Tenant's Share shall be thirty-one and
03/100 (31.03%) percent, which is the same ratio as the number of
square feet demised herein (approximately 36,000 square feet) to the
number of square feet in the building 425 Oser Avenue (approximately
116,000 square feet).
E. In addition to all of Tenant's other obligations under this Lease,
during each and every year during the term of this Lease and for so
long as Tenant's occupancy of the premises continues, Tenant agrees to
and shall pay Landlord, as additional rent, such annual charge for the
operation of the sewer treatment facility servicing the building in
which the premises are located as Landlord is then being charged by the
Suffolk County Sewer Agency, or such other agency operating the Sewer
treatment facility. Tenant's payments hereunder shall be due within
ten (10) days of Landlord's statement therefor. Landlord shall be
entitled to pursue all remedies available to Landlord for nonpayment of
rent should Tenant fail to make any payments as in this paragraph
provided.
Tenant shall be responsible for the charges set forth in this paragraph
E assessed during the term of this Lease, or any extension thereof,
whether or not the same are billed during the term. Tenant's
obligations hereunder shall survive the expiration or sooner
termination of this Lease.
Tenant covenants and agrees that THE WASTE ENTERING THE SEWER PLANT
SHALL BE LIMITED ONLY TO NORMAL LAVATORY WATER AND WASTE BUT SHALL
EXPRESSLY EXCLUDE ALL INDUSTRIAL WATER AND WASTE. Tenant's failure to
abide by this covenant shall be a default under this Lease.
The sewer charge for 1999 was $.20 per square foot of building area.
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42. REAL ESTATE TAXES:
A. In addition to Tenant's obligation to pay Base Rent, during each and
every year during the term of this Lease, and for so long as Tenant's
occupancy of the premises continues, Tenant agrees to pay and shall
pay, as additional rent, Tenant's Share of any and all increases in
Real Estate Taxes (as defined below), and increased assessments above
those for the Base Tax Year (as hereafter defined) imposed on 425 Oser
Avenue or, if Real Estate Taxes are not separately assessed for or
imposed upon 425 Oser Avenue, the tax lot(s) of which the premises are
or become a part, as the case may be. In the event Real Estate Taxes
are assessed or imposed upon the tax lot(s) of which the premises are
or become a part, Landlord may estimate the portion of the Real Estate
Taxes associated with 425 Oser Avenue. Landlord's estimate shall be
sufficient evidence for payment of Real Estate Taxes hereunder. Any
increase(s) in Real Estate Taxes due to an increase in the assessed
valuation of the land or building caused by Tenant's use and occupation
of the premises shall be borne entirely by Tenant.
Tenant shall be responsible for payment of Tenant's share of increases
in Real Estate Taxes, as additional rent hereunder, on a semiannual
basis, forty-five (45) days prior to the date Landlord is required to
make said payments to the taxing authority, without penalty.
However, if Landlord decides at any time and from time to time during
the term, at its sole option, Tenant shall make monthly Real Estate Tax
payments, along with the monthly Base Rent due, in accordance with the
procedure as set forth in paragraph 45. The parties agree their intent
is that Tenant shall have made payments to Landlord, on behalf of
increases in Real Estate Taxes, totaling Tenant's Share as in this
Lease provided, prior to the date said Real Estate Tax payments are due
to the taxing authority.
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Tenant shall also be responsible for payment of Tenant's Share of all
increases in Real Estate Taxes levied during the term of this Lease
even if the Real Estate Taxes are billed after the termination date of
this Lease. Tenant's obligations hereunder shall survive the
termination of this Lease. Partial Lease Years shall be prorated.
Landlord shall be entitled to all remedies available for nonpayment of
Base Rent in the event Tenant fails to make any payment(s) as in this
paragraph 42 provided. In addition to all remedies available to
Landlord, in the event Tenant fails to timely make any Real Estate Tax
payment(s), Landlord shall be entitled to a late payment and
administrative charge of five (5%) percent on said sum due but not
timely paid. The late payment and administrative charge shall be
payable as additional rent along with the additional rent to which it
pertains.
B. "Real Estate Taxes" shall mean the sum of all taxes, real estate
and real property taxes, assessments, special assessments, school
taxes, town and/or county taxes, assessed upon, or with respect
to the buildings and improvements known as 425 Oser Avenue and the
land, and any rights or interests appurtenant to either, or if taxes
are not separately assessed upon 425 Oser Avenue, the tax lot(s) of
which the premises are or become a part, and/or that portion of the
taxes associated with 425 Oser Avenue in the event Landlord estimates
the taxes associated with 425 Oser Avenue, imposed by Federal, State or
local governmental authority, or any other taxing authority having
jurisdiction thereover. Real Estate Taxes shall also include all fees
and expenses associated with the institution, prosecution, conduct and
maintenance of any negotiations, protests, certiorari, settlements,
actions or proceedings with respect to Real Estate Taxes or
assessments, and any tax attributable to improvements of whatever kind
and to whom belonging, situated or installed in or upon the premises,
whether or not affixed to the realty. If at any time during the term of
this Lease the methods of taxation prevailing at the commencement of
the term hereof shall be altered so that in lieu of, as an addition or
supplemental to, or as a substitute for the whole or any part of the
taxes, assessments, levies, impositions or charges now levied, assessed
or imposed on real estate and the improvements thereon, there shall be
levied, assessed or imposed (i) a tax, assessment, levy, imposition or
charge wholly or partially as capital levy or otherwise on the rents
received therefrom, or (ii) a tax assessment, levy, imposition or
charge measured by or based in whole or in
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part upon the demised premises and imposed upon Landlord, or (iii) a
license fee or charge measured by the rents payable by Tenant to
Landlord, then all such taxes, assessments, levies, impositions or
charges, or the part thereof so measured or based, shall be deemed to
be included within the term "Real Estate Taxes" for the purposes
hereof.
C. For the purposes hereof, the period December 1, 1999 through November
30, 2000 shall be the Base Tax Year. Base Rent includes Tenant's Share
of the Real Estate Taxes in the Base Tax Year. Real Estate Taxes for
the building in which the premises are located for the period December
1, 1999 through November 30, 2000 are $132,320.58. Real Estate Taxes
for the building in which the premises are located for the period
December 1, 1998 through November 30, 1999 were $128,303.91. Real
Estate Taxes for the building in which the premises are located for the
period December 1, 1997 through November 30, 1998 were $129,330.88.
Real Estate Taxes for the building in which the premises are located
for the period December 1, 1996 through November 30, 1997 were
$154,970.74. Real Estate Taxes for the building in which the premises
are located for the period December 1, 1995 through November 30, 1996
were $147,394.60.
D. Landlord shall have the sole, absolute and unrestricted right, but not
the obligation, at any time and from time to time to contest, dispute
or protest any Real Estate Taxes, assessment or tentative assessment
against or affecting the buildings 425 Oser Avenue, or the tax lot(s)
of which the premises are or become a part, whether by means of
negotiation, agreement, legal proceedings or otherwise. In the event
Landlord shall institute any contest, dispute or protest it shall have
the sole, absolute and unrestricted right to settle any negotiations,
contests, proceedings or actions upon whatever terms Landlord may in
its sole discretion determine.
43. INSURANCE:
At all times during the term hereof and for so long as Tenant occupies
the premises, or any part thereof, Tenant shall, at its sole cost and
expense, provide and keep in full force and effect, for the benefit of
Landlord, naming Landlord (and the partners and spouses of any Landlord
which is a partnership or the officers and directors of any corporate
partner thereof individually), and any mortgagee(s), as an additional
named insured thereunder, a comprehensive policy of liability insurance
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against any liability for injury to person(s) and/or property and death
of any persons, occurring in, at, upon or about the premises, or any
part thereof, or any appurtenances thereto. The limits of liability
thereunder shall not be less than $1,000,000 combined single limit
bodily injury and/or property damage and death per occurrence and
$2,000,000 aggregate limit and a $4,000,000 umbrella liability policy,
or a combined single limit of $5,000,000 per occurrence for bodily
injury and/or property damage and death. Each such policy shall be
written by insurance companies licensed and admitted to do business in
the State of New York, with a current Best Insurance Rating of A or
greater, and a financial size category of class 10, or greater. Tenant
shall furnish Landlord with a certificate of such insurance prior to
occupancy of the premises and, thereafter, at least thirty (30) days
prior to the expiration of any such policy. A copy of each paid up
policy, appropriately authenticated by the insurer, evidencing such
insurance and containing the provisions specified therein, shall be
delivered to Landlord within thirty (30) days of the commencement of
this Lease. Landlord may at any time, and from time to time, inspect
and/or copy any and all insurance policies required to procured by
Tenant under this Lease. Failure to maintain and provide said insurance
policies shall be a default under this Lease.
Each policy of insurance to be carried by Tenant under this Lease shall
be satisfactory to Landlord. Each policy evidencing the insurance to be
carried by Tenant under this Lease shall contain a clause that such
policy and the coverage evidenced thereby shall be primary with respect
to any policies carried by Landlord, and that any coverage carried by
Landlord shall be excess insurance.
Tenant shall also maintain in full force and effect during the term of
this Lease and so long as Tenant occupies the premises, for the benefit
of the Landlord, plate glass insurance for all glass at the premises.
Tenant shall also maintain insurance for the full replacement value of
its inventory, trade fixtures and other contents of the premises.
Tenant shall provide Landlord with a copy of said policies or a
certificate of insurance evidencing that such policies are in effect.
All policies of insurance carried by Tenant hereunder shall contain a
clause that the insurer may not cancel or refuse to renew the policy,
or change in any material way the nature or extent of the coverage,
except upon at least thirty (30) days prior written notice to Landlord
and/or
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any designee(s) of Landlord. In addition, all policies shall be written to
the effect that a default by Tenant thereunder, or any failure by Tenant
to abide by the terms of the policy shall not void Landlord's coverage
thereunder.
Landlord shall have the right, but not the obligation, at any time and from
time to time, and without notice, to procure said policies, or pay for such
premiums, as in this paragraph 43 provided, should Tenant fail to procure,
maintain, and/or pay for the insurance required by this Lease, at the times
and for the durations specified in this Lease, provided, however, that
payment by Landlord of any such premiums or the carrying by Landlord of any
such policy shall not be deemed to waive or release the default of Tenant
with respect thereto, or the right of Landlord to take such action as may
be permissible hereunder as in the case of default in the payment of Base
Rent. Tenant shall reimburse Landlord for all costs and expenses incurred,
together with interest thereon, as additional rent, with the next monthly
installment of Base Rent due. Said reimbursement shall be without prejudice
to any other rights or remedies of Landlord under this Lease. Landlord
shall be entitled to all remedies available for nonpayment of Base Rent
should Tenant fail to make the payments as in this paragraph provided.
Landlord shall have the right from time to time, on not less than 30 days'
notice, to require Tenant to increase the amount and/or type of coverage
required to be maintained under this Lease, provided the amount and/or type
of coverage is commercially reasonable for industrial/office tenants in
Nassau and Suffolk counties, New York.
44. COMMON AREA COSTS:
Landlord shall carry property damage insurance, liability insurance, and
umbrella liability insurance covering the building(s) in which the premises
are located. Landlord shall also plow the parking lot after two (2") inches
of snowfall and maintain the lawn and shrubbery (including the lawn
sprinkler system) surrounding 425 Oser Avenue. Landlord shall also sweep,
maintain and repair the parking lot and parking lot lighting, including
without limitation, replacement of bulbs and electrical costs. The
foregoing shall be defined as Common Area Costs.
Common Area Costs for the building in which the premises are located for
the calendar year 1999 were approximately $.19 per square foot of building
area. The $.19 per square foot is arrived at as follows: 1. snowplowing
(normal snow
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season), $.02 per square foot; 2. parking lot lighting and maintenance,
$.13 per square foot; and 3. insurance, $.04 per square foot.
In addition to Tenant's obligation to pay Base Rent, during the term of
this Lease, and for as long as Tenant occupies the premises, Tenant
agrees to and shall pay, as additional rent, Tenant's Share for all
Common Area Costs. Landlord's estimate as to the share of these costs
applicable to 425 Oser Avenue shall be sufficient evidence for Tenant's
payment hereunder. Tenant shall pay Landlord, as additional rent,
within 10 days of being billed for the same, or, at Landlord's sole
option at any time and from time to time, in accordance with the
procedure set forth in paragraph 45, whether or not the same is billed
after the expiration or sooner termination of the term of Lease.
Landlord shall be entitled to all remedies available for nonpayment of
Base Rent, including a late payment and administrative charge of five
(5%) percent of the total amount due in each instance, on all sums due
but not timely paid, should Tenant fail to make the payments as in this
paragraph provided. The late payment and administrative charge shall be
due as additional rent and shall be payable with the additional rent to
which it pertains.
Provided Tenant is not in default under any of the terms and conditions
of this Lease, and further provided Tenant has paid to Landlord all
payments on behalf of Common Area Costs billed to date by Landlord,
Tenant shall have the right, at Tenant's sole cost and expense, once
per year, upon reasonable prior notice to Landlord after the May of any
year, to examine at Landlord's office, at a mutually convenient time
during normal business hours, the items included within Common Area
Costs for the then previous year.
45. ADDITIONAL RENT PAYMENTS
Notwithstanding anything in this Lease, during each and every Lease
Year, Tenant shall be responsible for payment to Landlord, as
additional rent, at Landlord's sole option at any time and from time to
time, along with each monthly installment of Base Rent due hereunder,
of an amount equal to one twelfth (1/12) of Tenant's Share of the Real
Estate Taxes and Common Area Costs due under this Lease, on account of
Tenant's Share of the Real Estate Taxes and Common Area Costs payment
due to Landlord for the then current Lease Year. Tenant's payments
shall be based upon Landlord's estimate of these payments for the
premises for the current Lease Year. Such payments
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shall be due as additional rent. At the end of each Lease Year,
Landlord shall determine the actual amount due from Tenant for Tenant's
Share of Real Estate Taxes and Common Area Costs in accordance with the
terms of this Lease for each Lease Year, and Tenant shall, within ten
(10) days of being billed for the same (whether or not the same is
billed after the expiration or sooner termination of the term of this
Lease), pay to Landlord any amount actually due to Landlord, but not
paid. In the event Tenant's payments on behalf of Tenant's Share of
Real Estate Taxes and Common Area Costs for the prior Lease Year exceed
the amount actually due from Tenant for such items for such Lease Year,
provided Tenant is not in default under this Lease, Landlord shall
credit such overpayment by Tenant against Tenant's future payments on
account of Tenant's Share of Real Estate Taxes and Common Area Costs.
For each Lease Year after the first Lease Year, Tenant's estimated
payment shall be based upon, but shall not be less than, the actual
payments for the prior Lease Year, unless Landlord requires a higher
amount. It is understood that all payments due hereunder are deemed to
be additional rent and Landlord shall be entitled to all remedies
available in the event of nonpayment of Base Rent should Tenant fail to
make payments as in this paragraph provided.
It is specifically understood that, in accordance with the provisions
of this paragraph 45, Landlord has exercised its option to collect
Tenant's Share of Real Estate Taxes and Common Area Costs on a monthly
basis, along with each payment of monthly Base Rent. Tenant's monthly
payments for Tenant's Share of Real Estate Taxes and Common Area Costs
shall continue until Tenant receives notice to the contrary from
Landlord.
46. BROKER:
Tenant warrants and represents to Landlord that there was no broker
instrumental in consummating this Lease other than CB Richard Ellis,
Inc. and that no conversations or negotiations were had with any other
broker concerning this Lease or the premises. Tenant acknowledges that
Landlord is relying upon this representation by Tenant and Landlord
would not have entered into this Lease without such representation.
Tenant agrees to indemnify and hold Landlord harmless against any
commissions, costs, claims, judgments or other expenses, including
attorney's fees, for a brokerage commission arising out of any
conversations or negotiations had by Tenant with any other broker. Any
payments due to Landlord hereunder shall be due as additional rent. The
warranties and
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representations contained in this paragraph shall survive the
termination of this Lease.
47. HOLDOVER:
Notwithstanding anything to the contrary, in the event Tenant does not
vacate the premises upon the expiration date of this Lease, or upon the
expiration of any option, then and in that event or events, and only
with the written permission of Landlord, Tenant shall remain as a month
to month Tenant at a monthly rental which is the greater of two times
the monthly rental paid in the last month of the term or the market
rate for the premises at the expiration date of the Lease, payable as
aforesaid.
48. SIGNS:
Without Landlord's prior written consent, Tenant shall not place or
install any sign on the roof nor any exterior wall of the building
(including without limitation, both the interior and exterior surfaces
of windows and doors) nor on any part of the land except that Tenant
may install and maintain, at its own cost and expense, including
payments for permits and the sign, a single flat faced sign on the
front of the building, subject to the approval of Landlord as to
dimensions, content, material, location and design. In this regard,
Tenant's sign shall conform to the type of sign which shall be
uniformly required by Landlord for all tenants in the buildings known
as 425 Oser Avenue. Tenant agrees that the sign shall not be installed
on the premises or the building until all governmental approvals and
permits are first obtained, including payment for the same, and copies
thereof delivered to Landlord together with evidence of payment for any
fees pertaining to Tenant's sign. Tenant shall procure appropriate
Workmen's Compensation and liability insurance policies covering the
installation and maintenance of any signs, and all such policies or
certificates of such policies shall be delivered to Landlord prior to
the commencement of any work and shall provide that such policies shall
not be canceled, except upon ten (10) days' written notice to Landlord.
In the event Landlord or Landlord's representative shall deem it
necessary to remove such sign or signs in order to make any repairs,
alterations or improvements in and upon the premises, or the building,
Landlord shall have the right to do so, provided the same be removed
and replaced at Tenant's expense, whenever the said repairs,
alterations or improvements shall have been completed. At the
expiration or sooner termination of this Lease, unless notified to the
contrary by Landlord, Tenant
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shall, at its sole cost and expense, remove its sign from the building
and repair, replace and restore the building and the premises to the
condition existing prior to the placement of the sign.
49. REPAIRS:
Notwithstanding anything to the contrary, Tenant shall, at all times,
during the term of this Lease, and for so long as Tenant's occupancy
continues, and at its own cost and expense, make all repairs,
replacements, restorations and renewals as needed including, without
limitation by their inclusion, repainting, replacing of damaged floor,
broken glass, walls and wall covering, keeping exterior windows and
doors water tight, and keeping all overhead doors, mechanical
apparatus, plumbing, lighting, electrical and other utility systems in
good operating condition, to put, keep, replace and maintain the
premises and all portions thereof and all equipment, appurtenances and
improvements thereon and therein in thorough repair and good, safe,
clean and substantial order and condition.
Tenant shall not, without Landlord's prior written approval, which
approval may be withheld for any reason notwithstanding anything to the
contrary in paragraph 54, make any penetrations to, or add additional
loads to, or place any machinery, item or thing on, the roof.
During the first year only of the term of this Lease Landlord shall
make repairs to the roof not necessitated by the willful, grossly
negligent or negligent acts of omission or commission of Tenant, its
employees, agents, invitees, licensees, contractors and the like.
Thereafter, during the remainder of the term of this Lease and for as
long as Tenant occupies the premises, Tenant shall, at its sole cost
and expense, be responsible for and shall make all roof repairs: (i)
necessitated by the willful, grossly negligent and/or negligent acts of
omission or commission of Tenant, its employees, officers, agents,
invitees, licensees, servants, contractors, and the like; or (ii) the
cost of which do not exceed $1,500.00 per Lease Year on a cumulative
basis. In the event during the remainder of the term of this Lease a
repair which is not necessitated by (i) above and the cost of which
exceeds $1,500.00 on a cumulative basis, or, if added to previous
repairs not necessitated by (i) above during such Lease Year will
exceed $1,500.00 on a cumulative basis, Tenant shall be responsible for
the first $1,500.00 of said repair on a cumulative basis, or the amount
of the repair which, when added to the previous repairs during such
Lease Year not caused by (i) above, up to $1,500.00 on a
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cumulative basis, and Landlord shall be responsible for the amount of
the repair which exceeds $1,500.00 on a cumulative basis, or the
repairs during such Lease Year which exceed $1,500.00 on a cumulative
basis, provided Tenant forwards to Landlord a check in the amount of
$1,500.00 on a cumulative basis, or a check in such amount that when
added to the previous repairs during such Lease Year will equal
$1,500.00 on a cumulative basis, along with a true, complete and
correct estimate for the repair which evidences a roof repair the cost
of which exceeds $1,500.00 on a cumulative basis, or the cost of which
when added to paid bills forwarded for repairs during such Lease Year
exceeds $1,500.00 on a cumulative basis, with a request to make a roof
repair. Landlord shall then have the option of authorizing the repair
to be done by Tenant's contractor, or otherwise repairing the roof, in
either instance at Landlords' expense.
In addition to all of the foregoing Tenant repair, replacement and
restoration obligations, Tenant has the full responsibility of
maintaining and repairing the heating/air conditioning systems. Tenant
shall purchase, at its expense, a full service maintenance contract
acceptable in form and content to Landlord for the life of this Lease
and which contract shall commence on the commencement of the term of
this Lease and which shall provide for replacement of all parts and the
cost of labor and preventative maintenance to be done on at least a
quarterly basis for the heating and air conditioning system. Tenant
shall deliver a copy of said maintenance contract to Landlord within
twenty (20) days of occupancy of the premises. In the event Tenant
fails to obtain said maintenance contract, Landlord may, but shall not
be obligated to and without relieving Tenant of its obligation to do
so, obtain said contract on behalf of Tenant. The total cost thereof
shall be payable by Tenant with the next monthly installment of Base
Rent and shall be payable as additional rent. Landlord shall be
entitled to all remedies available in the event of nonpayment of Base
Rent in the event Tenant fails to make the payments as in this
paragraph provided.
Provided Tenant is maintaining the full service maintenance contract
required by this Lease, then in the event replacement is required to be
made to the heating, ventilating and air conditioning system which is
not covered by the service contract (excluding any heating, ventilating
and air conditioning system installed by Tenant for which Tenant shall
be solely responsible) and further provided the replacement to the
heating, ventilating and air conditioning system is not necessitated
by the willful, grossly negligent or negligent acts of omission or
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commission of Tenant, its employees, agents, invitees, licensees,
contractors and the like, Landlord shall be responsible for the
replacement.
Tenant's responsibility to return the premises in accordance with
Article "22" is supplemented to the extent that damage to the premises
(including, but not limited to, walls, floors, ceilings) resulting from
Tenant's use shall not be considered ordinary wear and tear and Tenant
shall be responsible for repair of such damage.
50. UTILITIES:
Landlord shall submeter the premises for gas and electric. Tenant, at
its sole cost and expense, shall provide its own heat, light, power,
fuels, water and all other utilities and services required for the
demised premises. Tenant shall pay promptly, as and when due, the
utility companies directly for any and all costs in connection
therewith and shall indemnify Landlord on account thereof. This
indemnification shall survive the expiration or sooner termination of
this Lease for all costs during the term of this Lease.
51. USE:
A. Add the following language to paragraph "2" of the Lease:
"...subject to, in accordance with and provided such use fully complies
with all rules, regulations, laws, ordinances, statutes and
requirements (including, but not limited to, zoning regulations
governing and/or effecting the premises and the certificate of
occupancy for the building, if any), of all governmental authorities
and the Fire Insurance Rating Organization and the Board of Fire
Insurance Underwriters, and any similar bodies having jurisdiction
thereof, and the covenants and restrictions attached hereto, and for
no other purpose."
B. Tenant may not conduct any dangerous, hazardous, noxious or offensive
use at the premises. Tenant shall first obtain all governmental permits
and licenses as may be required for Tenant's use and occupancy of the
premises, and Tenant, at Tenant's sole cost and expense, at all times
shall promptly comply with all present and future laws, ordinances,
orders, regulations and insurance company requirements affecting the
premises and their cleanliness, safety, occupation and use. Tenant's
responsibility to comply
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shall include changes to the premises, including structural changes and
repairs. Tenant shall not do or permit anything to be done in or about
the premises, or bring or keep anything in the premises that will in
any way increase the normal premium rates or cause suspension or
termination of the fire or other insurance upon the building. Should
Tenant's occupation of the premises jeopardize the Owner's insurance
coverage, create additional risks or cause an increase in Landlord's
insurance premiums, Tenant shall be solely responsible for all costs
associated therewith, including prompt payment, as additional rent with
the next monthly installment of Base Rent due, of all increased
premiums, including the premiums for contents insurance of any other
occupants affected thereby. Tenant shall not perform any act or carry
on any practice(s) that may injure the building or be a nuisance or
menace to tenants of adjoining premises. Tenant shall not permit open
storage on the premises detrimental to the appearance of the
garden-type industrial development, and shall require loading and
unloading, and parking of cars for employees, customers, and visitors,
in connection with Tenant's business, to be done in the designated
areas on the premises and not on any street.
C. Tenant shall also execute and deliver to Landlord the following items:
(i) within fifteen (15) days of execution of this Lease, a letter,
on Tenant's business stationery, for the Town of Smithtown
Building Department, indicating the nature of Tenant's
business and the utilization of the demised premises in square
foot terms (for example: how many square foot will be used for
warehouse, plant and/or office purposes.) This letter should
be addressed to Landlord.
(ii) within fifteen (15) days of execution of this Lease, a
letter, on Tenant's business stationery, for the Suffolk
County Department of Health Services, responsive to the
questions set forth on the specimen letter attached hereto as
Exhibit "E".
(iii) within five (5) days of execution of this Lease, a completed
application, on the form submitted by Landlord, for the Long
Island Power Authority, for service to the demised premises.
If required, Landlord shall reasonably assist Tenant, without cost to
Landlord, in the preparation of these items.
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D. Tenant shall, at its sole cost and expense, install and maintain fire
extinguishers and sand pails if recommended by the Board of Fire
Underwriters.
E. As an addition to paragraph "4", Tenant will keep the exterior front and
rear of the demised premises, including the parking lot and loading
adjacent to the premises, in a neat and clean condition.
F. During the term of this Lease, Tenant shall have the right to the
non-exclusive use of one hundred fifty (150) parking spaces in the
parking lot surrounding the building in which the premises are located,
or in the parking lot across the street from the building in which the
premises are located. Included within said one hundred fifty (150)
parking spaces shall be 68 reserved spaces adjacent to the premises.
Tenant agrees that Tenant's use of the parking spaces shall be at
Tenant's sole and exclusive risk; Landlord shall have no responsibility
or liability to Tenant and Tenant hereby releases Landlord from all
liability and responsibility in connection with use of any of such
spaces by anyone other than Tenant and any theft of, damage to or
destruction of, and/or injury to persons and/or property of or to any
cars which may be parked in said parking lot.
52. ATTORNEY'S FEES:
In the event that Landlord institutes or is made a party to:
(a) summary or other proceedings to recover possession of the
premises (including if Tenant remains in the premises after the
expiration date of the term of this Lease) and is Successful
(as hereafter defined); or
(b) a lawsuit to recover rent, additional rent or other payments
due under the Lease and is Successful; or
(c) a lawsuit to enforce or to recover damage for the breach of any
of the terms of the Lease and is Successful; or
(d) a lawsuit to determine the obligations of Landlord or Tenant
under the Lease and is Successful; or
(e) any arbitration or mediation and is Successful; or
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(f) any appearance by Landlord or its representatives at any of (a)-(e) and is
Successful; or
(g) should Tenant desire to amend, modify or change the Lease, or desire to
assign the Lease or sublease the premises or in any other situation where
Landlord needs the services of an attorney;
it is specifically agreed that Landlord shall recover from, or be paid by
Tenant, in addition to all items which Landlord may be entitled to recover in
law or in equity, attorney's fees, and the costs and disbursements of said
proceeding or otherwise as set forth in (a)-(g) above. Said payments shall be
due as additional rent, and Landlord's petition and/or pleadings may make demand
for payment of attorney's fees as an amount currently due and owing to Landlord
as of the date of the petition and/or pleadings, without the necessity of any
prior or further demand therefor or invoice for the same.
For the purposes hereof, Landlord shall be Successful in the event at any time
Landlord obtains a judgment, order or recovers, or Tenant agrees to or is
ordered to pay, or comply with, the whole or any part of the relief demanded in
Landlord's petition, complaint, pleadings or other moving papers, or there is a
settlement with Tenant, whether at, during or prior to any trial or hearing, by
stipulation, order or otherwise, whereby Landlord obtains or recovers, or Tenant
agrees to pay or comply with the whole or any part of the relief demanded in
Landlord's petition, complaint, pleading or other moving papers.
In the event Landlord shall recover possession of the premises in any summary
proceeding, or otherwise, Tenant shall remain liable to Landlord under the
Lease, and in addition to all other remedies available to Landlord at law, in
equity or under this Lease, Landlord may seek damages for failure to pay rent
and additional rent under the Lease, or for failure to abide by the terms and
conditions of the Lease.
53. ASSIGNMENT AND SUBLETTING:
A. Notwithstanding anything to the contrary in this Lease, without
Landlord's prior written consent (which consent shall not be unreasonably
withheld) and subject to this paragraph 53, neither Tenant, nor Tenant's
legal representatives or successors in interest by operation of
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law or otherwise (except as set forth in paragraph "C" of this
paragraph 53) shall assign or otherwise transfer this Lease, mortgage,
pledge or otherwise encumber this Lease, or any part of Tenant's right,
title or interest therein. With the prior written consent of Landlord
(which consent shall not be unreasonably withheld) and subject to this
paragraph 53, Tenant may sublet the whole of the premises or permit the
whole premises to be used or occupied by others (subject to paragraph
"B" and paragraph "C" of this paragraph 53). Subject to obtaining
Landlord's prior written consent, the other terms of this paragraph 53
and provided Tenant remains in occupancy of at least fifty (50%) of the
premises, Tenant may sublet up to fifty (50%) percent of the premises
for use by one other occupant, it being understood that at no time
shall there be more than one occupant of the premises beside Tenant.
B. (1) In the event of a subletting pursuant to this paragraph 53, and
the rental income under such sublease exceeds the rental payable
by Tenant under this Lease, such rent differential shall be for
the account of Landlord, and Tenant covenants to pay Landlord
such differential, as additional rent, in equal monthly
installments, together with the rental payable under this Lease.
Landlord shall be entitled to pursue all remedies which may be
available for nonpayment of Base Rent should Tenant fail to make
payment as required by this paragraph.
(2) Anything to the contrary notwithstanding in this Lease, should
Tenant desire to assign this Lease or to subject the premises,
Tenant shall, prior to the effective date thereof (the
"Effective Date"), deliver to Landlord executed counterparts of
any such agreement and of all ancillary agreements with the
proposed assignee or subtenant, as applicable. Landlord shall
then have ALL THE FOLLOWING RIGHTS, any of which Landlord may
exercise by written notice to Tenant given within thirty (30)
days after Landlord receives the foregoing documents:
(a) with respect to a proposed assignment of this Lease,
the right to terminate this Lease on the Effective
Date as if it were the expiration or termination date
of this Lease.
(b) with respect to a proposed subletting of the
premises, the right to terminate this
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Lease on the Effective as if it were the expiration or
termination date of this Lease, provided, however, if the
proposed sublease is for less than the entire premises,
Landlord shall have the right to terminate this Lease as to
that portion of the premises Tenant desires to sublet and the
Lease shall remain in effect as to the remainder of the
premises.
(3) If Landlord exercises any of its options under paragraph
53(B)(2), Landlord may then Lease the premises, or any portion
thereof, to Tenant's proposed assignee or subtenant, as the case
may be, without liability whatsoever to Tenant.
C. Subparagraph "A" and "B" of this paragraph 53 to the contrary
notwithstanding, Tenant shall have the right to assign this Lease or
sublet the entire premises without Landlord's consent provided that the
assignee or sublessee is a corporation which is the parent of, or a
wholly owned subsidiary of, Tenant succeeding to the entire business
carried on by Tenant, provided the following conditions are complied
with:
(1) The assignment or subletting must be, respectively, of all of
Tenant's leasehold interest and of the entire premises and in the
case of assignment, shall also transfer to the assignee all of
Tenant's rights in and interest under this Lease including the
security, if any, deposited hereunder.
(2) At the time of such assignment or subletting this Lease must be
in full force and effect without any breach or default thereunder
on the part of Tenant continuing beyond the period provided for
curing same.
(3) The assignment or subletting must be solely for the same purposes
and uses permitted by this Lease.
(4) The assignee (or sublessee, if the sublease is for a term less
than the then remaining term of this Lease) shall assume, by
written recordable instrument, in form and content satisfactory
to Landlord, the due performance of all of Tenant's obligations
under the Lease, including any accrued obligations at the time of
the assignment or subletting.
(5) A copy of the assignment or sublease and the
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original assumption agreement (both in form and content
satisfactory to Landlord) fully executed and acknowledged by
the assignee together (if a corporation) with a certified copy
of a properly executed corporate resolution authorizing such
assumption agreement, shall be delivered to Landlord ten (10)
days prior to the effective date of such assignment or
subletting.
(6) Such assignment and/or subletting shall be upon and subject to
all the provisions, terms, covenants and conditions of this
Lease and Tenant (and any assignee(s) and sublessees(s)) shall
continue to be and remain liable thereunder.
(7) Tenant shall reimburse Landlord for Landlord's attorney's fees
for examination of and/or preparation of any documents in
connection with such assignment. Landlord's attorney's fees
shall be at the rate of $200.00 per hour.
(8) Subject to the foregoing, Tenant may not effect a transaction
the result of which is that this Lease becomes an asset of a
person, firm or corporation having no bona fide and ongoing
business relationship to Tenant.
D. Deemed Assignment, Sublet. For the purpose of this paragraph 53:
(1) Intentionally deleted prior to Lease execution.
(2) Intentionally deleted prior to Lease execution.
(3) an agreement by any other person, directly or indirectly, to
assume Tenant's obligations under this Lease shall be deemed
an assignment.
(4) a transfer by operation of law, merger, consolidation or
otherwise, of Tenant's interest in this Lease shall be deemed
an assignment; any person to whom Tenant's interest under this
Lease passes by operation of law, or otherwise, shall be bound
by the provisions of this paragraph; and
(5) each modification, amendment or extension or any sublease to
which Landlord has previously consented shall be deemed a new
sublease.
E. In the event Landlord shall not exercise its right of recapture as set
forth in (B) above, in determining
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whether to grant consent to Tenant's sublet or assignment request, Landlord may
consider any reasonable factor. Landlord and Tenant agree that lack of any one
of the following factors, or any other reasonable factor, will be conclusively
deemed reasonable grounds for denying Tenant's request:
(1) financial strength of the proposed subtenant/assignee must be
at least equal to that of the existing Tenant;
(2) business reputation of the proposed subtenant/assignee must be
in accordance with generally acceptable commercial standards;
(3) use of the premises by the proposed subtenant/assignee shall be
for general offices;
(4) managerial and operational skills of the proposed
subtenant/assignee must be the same as those of the existing
Tenant;
(5) use of the premises by the proposed subtenant/assignee will not
violate or create any potential violation of any laws;
(6) use of the premises will not violate any other agreements
affecting the premises, Landlord or other Tenants.
Landlord may withhold its consent hereunder should Tenant in
any way attempt or intend to use this Lease as an asset, for
the purpose of subletting the premises or assigning the Lease,
as Landlord in its sole discretion may determine.
F. If Landlord does not deny Tenant's request, such consent shall be given
subject to and provided Tenant strictly complies with items (1) - (8) of
subsection "C" of this paragraph 53.
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54. CONSENTS:
Subject to paragraph 53(E), wherever consents are required, such
consents shall not be unreasonably withheld, provided, however, that
in the event Landlord's consent is not given Tenant, in no event,
shall be entitled to make, nor shall Tenant make, any claim for, and
Tenant hereby expressly waives any claim for money damages; nor shall
Tenant claim any money damages by way of setoff, counterclaim or
defense, based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld any consent; but Tenant's sole and exclusive
remedy shall be an action or proceeding to enforce any such provision,
or for specific performance, injunction or declaratory judgment.
55. FINANCIAL STATEMENTS:
Upon request by Landlord, Tenant agrees that it will furnish to
Landlord, and to prospective mortgagees of the property, such financial
statements as such prospective mortgagee(s) may request, provided,
however, in the event Tenant is a public company and files an annual
report with the Securities and Exchange Commission as required by
securities laws, then the foregoing obligation shall be satisfied by
Tenant delivering to Landlord such most recent annual report filed with
the Securities and Exchange Commission as required by securities laws.
Tenant also agrees not to take any action which may impair Landlord's
ability to mortgage the building of which the premises form a part.
56. INDEMNIFICATION:
Tenant agrees to and hereby does indemnify and save Landlord and
Landlord's agents harmless from and against any and all suits, actions,
damages, costs, judgments, expenses, claims, liabilities and demands,
including attorney's fees, (except such as result from the sole
negligence of Landlord) for, or in connection with, any accident, loss
of life, injury or damage whatsoever caused to any person or property
arising, directly or indirectly, from or out of any occurrence, the
business conducted or the services provided in the premises or any part
thereof, or occurring in, upon, at, on or about the premises, or any
part thereof, or on the sidewalks adjoining the same, or in any parking
area, loading area, or any common area of or surrounding the premises,
or arising directly or indirectly, or occasioned wholly or in part by
or from any act or omission of Tenant or any
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concessionaire or subtenant, or their respective licensees, servants,
agents, employees or contractors, and from and against any and all
damages, costs, expenses, judgments, and liabilities incurred in
connection with any such claim or proceeding brought thereon, including
attorney's fees. This indemnification by Tenant shall also include any
costs, expenses and damages which Landlord does or may incur in
enforcing this indemnification. The indemnification provided for in
this paragraph shall survive the termination of this Lease.
57. LANDLORD'S LIABILITY:
It is specifically understood and agreed that there shall be no
personal liability on Landlord in respect to any of the covenants,
conditions or provisions of this Lease. In the event of a breach or
default by Landlord of any of its obligations under this Lease, Tenant
shall look solely to the equity of Landlord in the demised premises for
the satisfaction of Tenant's remedies and Tenant shall have no right of
lien, levy, execution or other enforcement proceedings against any
other property or assets of Landlord or the principals thereof.
58. CONDEMNATION:
A. If ten (10%) percent or more of the demised premises shall be taken for
any public or quasi-public use under any statute or by right of eminent
domain, or by private purchase in lieu thereof, then Landlord and
Tenant shall each have the right to terminate this Lease on thirty (30)
days written notice to the other given sixty (60) days after the date
of such taking.
B. If any part of the premises shall be so taken and this Lease shall not
terminate or be terminated under the provisions of paragraph "A"
hereof, then the annual Base Rents shall be equitably apportioned
according to the floor space so taken and Landlord shall make all
necessary repairs or alterations to the premises so as to constitute
that portion of the building and other improvements on the premises not
taken a complete architectural unit and/or as nearly similar in
character as practicable to what they were before the taking.
C. All compensation awarded or paid upon such a total or partial taking of
the premises shall belong to and be the property of Landlord without
any participation by Tenant; provided, however, that nothing contained
herein shall be construed to preclude Tenant from
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prosecuting any claim directly against the condemning authority in such
condemnation proceedings for loss of business, and/or depreciation to, damage
to and/or cost of removal of, and/or for the value of stock and/or trade
fixtures, furniture and other personal property belonging to Tenant; provided,
however that no such claim shall diminish or otherwise adversely affect
Landlord's award(s) or the holder(s) of any and all mortgages affecting the
premises. In no event shall Tenant make any claim for the value of the
unexpired term of this Lease.
59. BUILDING OPERATIONS:
A. Landlord shall not be responsible or liable to Tenant for any loss or
damage that may be occasioned by the acts or omissions of persons
occupying any space adjacent to or adjoining the premises, or any part
thereof, or for any loss or damage resulting to Tenant or its property
from water, gas, steam, fire, or the bursting, stoppage or leaking of
sewer pipes, provided that such loss or damage is not occasioned by the
negligence of Landlord.
B. Tenant shall permit Landlord or its designees to erect, use, maintain
and repair pipes, cables, plumbing, vents and wires, in, to and
through the building and/or the premises as and to the extent that
Landlord may now or hereafter deem to be necessary or appropriate for
the proper operation and maintenance of the building or any other
portion of the premises. Landlord agrees to give Tenant reasonable
prior notice to Tenant (which notice may be by telephone) of its entry
to do any of the aforesaid work. All such work shall be done, so far
as practicable, in such manner as to avoid unreasonable interference
with Tenant's use of the premises but shall not be considered a
constructive eviction. Landlord shall repair or cause to be repaired
any damage to the premises by reason of its entry to do any of the
foregoing work.
60. POLLUTION INDEMNIFICATION:
Tenant agrees that no part of the premises will be used in any way for, and
Tenant shall not suffer, permit or allow the use of the premises or any part
thereof, either directly or indirectly, for treatment, preparation, generation,
manufacture, use, refining, production, storage, maintenance, handling,
transfer, transporting, processing, disposal, burial, dispersal, release, or
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placement of any Hazardous Substance (as hereinafter defined),
petroleum products, pollutants or contaminants, and that Tenant shall
not release, suffer or permit the release of any Hazardous Substance,
petroleum products, pollutants or contaminants onto the premises or
into the subsurface thereof or onto any property whatsoever, including
without limitation, surface water and ground waters unless in
compliance with all applicable law(s), permit(s), order(s), or other
valid governmental approval(s), whether now in effect or hereafter
enacted. Furthermore, Tenant shall not cause or permit to occur any
violation of any federal, state or local law, ordinance, regulation or
order now or hereafter enacted, related to environmental conditions on,
under or about the premises, or arising from Tenant's use or occupancy
of the premises, including, but not limited to, soil and ground water
conditions. Tenant shall, at Tenant's own expense, comply with all laws
regulating the treatment, preparation, generation, manufacture, use,
refining, production, storage, maintenance, handling, transfer,
transporting disposal, burial, dispersal, release, or placement of any
Hazardous Substance, petroleum products, pollutants or contaminants.
Furthermore, Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with
all requirements of all governmental authorities under all present and
future laws. Tenant shall immediately notify Landlord in writing of any
release or discharge of any Hazardous Substance, petroleum products,
pollutants or contaminants, whether or not the release or discharge is
in quantities that would require under law the reporting of such
release or discharge to any governmental or regulatory agency. Tenant
shall provide all information regarding the treatment, preparation,
generation, manufacture, use, refining, production, storage,
maintenance, handling, transfer, transporting, processing, disposal,
burial, dispersal, release, or placement of any Hazardous Substance,
petroleum products, pollutants or contaminants that is requested by
Landlord. Tenant agrees to immediately provide Landlord with an exact
copy of any notice, directive, request, demand or any other
communication received by Tenant in connection with or relating to any
matter or thing covered by paragraph 60.
The term Hazardous Substance means, without limitation, any pollutant,
contaminant, toxic or hazardous waste, dangerous substance, potentially
dangerous substance, noxious substance, toxic substance, flammable,
explosive, combustible, radioactive material, urea formaldehyde foam
insulation, asbestos, PCB's, chemicals known to cause cancer or
reproductive toxicity, or any
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manufacture, preparation, production, generation, use, maintenance,
treatment, storage, transfer, handling or ownership of which is
restricted, prohibited, regulated, penalized by any and all federal,
state, local, county, or municipal statutes, laws, or orders now or at
any time hereafter in effect, including but not limited to, the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. ss.ss. 9601 et seq.), the Hazardous Materials Transportation
Act (49 U.S.C. ss.ss. 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. ss.ss. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss.ss. 7401 et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss.ss. 2601 et seq.), the
Occupational Safety and Health Act (29 U.S.C. ss.ss. 651 et seq.), as
these laws have been or may be amended or supplemented, and any
substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
Failure of Tenant to abide by all of the foregoing obligations shall be
a default under this Lease which, if not cured within five (5) days of
Landlord's notice, unless the default shall be of such a nature that
the same cannot be completely cured or remedied within said five (5)
day period and Tenant shall not have commenced the cure within such
five (5) day period and is not thereafter diligently prosecuting the
completion of such cure and does not complete such cure within thirty
days, (in any case, sooner if an emergency, dangerous, or hazardous
condition exists in, at, on, upon or about the premises), shall entitle
Landlord to pursue all remedies available in law, at equity and/or
under the Lease.
In addition, Tenant shall indemnify and save Landlord and its
successors and assigns and their respective officers, directors,
shareholders, partners, agents and employees and the premises and the
building of which the premises are part, harmless against any and all
claims, obligations, liabilities, violations, penalties, fines, suits,
governmental orders, causes of actions, judgments, damages, costs and
expenses, whether civil or criminal or both, of any and all kind or
nature which result from or are in any way connected with a breach or
default by Tenant of the foregoing agreement and/or which the Landlord
may be subject in connection with any Hazardous Substance resulting
from or in connection with the discharge, despoiler, release or escape
of any Hazardous Substance, smoke, vapors, soot, fumes, acids,
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alkalis, toxic or hazardous chemicals, liquids or gases, volatile
organics, waste materials or other irritants, contaminants or
pollutants or otherwise at the premises, or caused by or resulting from
the use and operation of the premises by Tenant, its successors and
assigns and/or by reason of Tenant's invitees, licensees, employees,
officers, agents, servants, etc., in any case whether or not Tenant has
complied with its obligations pursuant to this agreement. This
indemnification and save harmless agreement shall also cover any and
all liens for hazardous waste clean up expenses in favor of the United
States, New York State, or any political subdivision thereof, including
the County of Suffolk, Town of Smithtown, and any governmental
department of any of the foregoing.
All payments due from Tenant hereunder shall be due and payable as
additional rent within ten (10) days of presentation of a statement
therefor by Landlord.
This indemnification shall include, but not be limited to, legal fees
and other charges to which Landlord may be put, including cleanup
costs, in defending against any action or proceeding in connection
with the foregoing.
This indemnification and save harmless agreement shall survive the
termination of this Lease.
Landlord represents to Tenant that to the best of Landlord's
knowledge: (i) the premises have not been used for the production or
storage of toxic or hazardous waste in excess of legal limits; and
(ii) as of the date hereof, there is no toxic or hazardous waste at
the premises in excess of legal limits.
In the event Tenant shall establish that an environmental condition at
the premises existed prior to the date of Tenant's occupancy of the
premises and is not attributable to the activities of Tenant, its
employees, agents, guests, visitors, subtenant(s), licensee(s),
concessionaire(s), contractors or subcontractors, then Landlord agrees
to indemnify, defend and hold harmless Tenant from and against such
losses, liabilities, obligations, claims, actions, and costs
(specifically excluding consequential and punitive damages) from the
environmental condition Tenant shall establish existed at the premises
prior to the date of Tenant's occupancy of the premises and which is
not attributable to the activities of Tenant, its employees, agents,
guests, visitors, subtenant(s), licensee(s), concessionaire(s),
contractors or subcontractors. It is specifically understood and
agreed that the burden of proof to prove
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whether an environmental condition at the premises existed prior to
the date of Tenant's occupancy of the premises and is not attributable
to the activities of Tenant, its employees, agents, guests, visitors,
subtenant(s), licensee(s), concessionaire(s), contractors or
subcontractors, is on the Tenant. Landlord's obligation hereunder
shall survive the expiration or termination of this Lease.
61. SURFACE AND SUBSURFACE SAMPLING BY TENANT:
Tenant shall have the right, within twenty (20) days from the date of this
Lease, to conduct and complete surface and subsurface sampling of the soil at
the premises, or otherwise conduct a "Phase I" environmental survey of the
premises. Any such sampling and/or survey shall be at Tenant's sole cost and
expense. Said sampling and/or survey shall not be commenced by Tenant, or any
of its officers, agents, servants, employees or contractors prior to written
notice to Landlord, which notice shall set forth the extent of the proposed
sampling and/or survey and by whom said sampling and/or survey shall be
conducted and which notice shall also provide Landlord with evidence that
public liability insurance as required by this Lease is in full force and
effect, and that Workman's Compensation, in statutory limits, is in full force
and effect. Tenant agrees that promptly after the completion of said sampling
and/or survey, the premises shall be returned to the condition that existed
prior to the commencement of said sampling and/or survey. Tenant shall
indemnify and hold Landlord harmless, in accordance with the indemnity
provisions of this Lease, by reason of said sampling and/or survey or in
connection with any damage or injury (including death) to persons or property
which result from said sampling and/or survey.
Tenant hereby agrees to provide Landlord with a true and complete copy of the
results of said sampling and/or survey. Tenant agrees not to disclose the
results of such sampling and/or survey to any person or entity without
Landlord's prior written consent. In the event such sampling and/or survey by
Tenant discloses any toxic or hazardous substances in excess of legal limits,
Landlord shall have no obligation or responsibility to Tenant for any damages
whatsoever by reason thereof, and provided the same was not caused by Tenant's
use or occupancy of the premises, Tenant shall have the right to notify
Landlord of its desire to terminate this Lease by reason of the existence of
such hazardous or toxic substances in excess of legal limits by written notice
to Landlord received by not later than twenty (20) days from the date of this
Lease, which notice shall include a copy of the report of the results of the
sampling and/or survey and shall set forth a date not less than twenty (20)
days from the date of Tenant's notice by which Tenant desires to terminate this
Lease.
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Notwithstanding any such notice from Tenant, this Lease shall remain in full
force and effect if, prior to the date set forth in Tenant's termination
notice, Landlord notifies Tenant of its desire to remediate the condition at
the premises, commences the remediation within such twenty (20) days period and
thereafter continues diligently to prosecute the completion of such work. In
the event Landlord shall remediate the condition at the premises pursuant to
paragraph 61, Tenant shall not be charged for such remediation costs.
In the event Landlord desires to allow this Lease to terminate in response to
Tenant's twenty (20) days notice, Landlord shall so notify Tenant and, provided
Tenant has paid Landlord all amounts due under this Lease to the date set forth
in Tenant's termination notice, and removed any items placed in, on or about
the premises and returned the premises to Landlord in accordance with the
provisions of the Lease, this Lease shall terminate on the date set forth in
Tenant's termination notice as if such date was the date originally set forth
for the expiration of the term of this Lease and all obligations which were to
survive the expiration or termination of the term of the Lease shall survive
the termination of the Lease in accordance with this paragraph 61.
62. GARBAGE REMOVAL:
Notwithstanding anything to the contrary, for only the first three (3)
months of the term of the Lease Landlord shall contract with a carting
firm and pay for the removal of rubbish from the demised premises
resulting from Tenant's ordinary business operation at the demised
premises and shall not include the removal of other than ordinary
waste, and expressly excludes hazardous and/or toxic waste. This
payment by Landlord is given as a courtesy to Tenant and shall not be
considered as part of the consideration for the Lease. Thereafter,
during the term of the Lease and for as long as Tenant's occupancy of
the premises continues, Tenant shall be fully responsible for,
including payment for the same, removal of all garbage and rubbish
from the premises and all garbage and rubbish generated by or from the
premises.
63. JURISDICTION AND LAW:
In any controversy involving Landlord and Tenant under this Lease, it
is hereby agreed that the courts of the State of New York, in and for
the County of Suffolk, be deemed the jurisdiction for purposes of any
controversy involving the Lease herein and the laws of the State of
New York shall govern. Tenant hereby acknowledges that it
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is authorized to do business in the State of New York and is subject to
and hereby submits to the jurisdiction of the courts of the State of
New York.
64. TENANT'S AUTHORITY:
Tenant warrants and represents that it is duly formed and in good
standing, and has corporate or partnership power and authority, as the
case may be, to enter into this Lease and has taken all corporate or
partnership action, as the case may be, necessary to carry out the
transaction contemplated herein, so that when executed, this Lease
constitutes a valid and binding obligation enforceable in accordance
with its terms. Tenant represents that its Chief Operating Officer and
President have the requisite corporate authority to execute this Lease
and bind Tenant.
65. WORK:
Landlord agrees to do the following work at the premises to make the
same ready for Tenant's occupancy:
(i) Paint the walls using Landlord's building standard paint in a
color of Tenant's choice from Landlord's samples.
(ii) Install Landlord's building standard carpet in a color of
Tenant's choice from Landlord's samples on the floor of those
offices which currently have carpeting.
(iii) Replace floor tiles, as needed.
(iv) Repair or replace ceiling tiles, as needed.
On the commencement date of the term of this Lease Landlord agrees that the
existing plumbing, electrical, lighting and HVAC systems at the premises shall
be in working order, the premises shall be in a good state of repair and
satisfactory condition and the premises shall be broom clean.
Landlord warrants and represents to Tenant that as of the date hereof: (i) the
premises are not in violation of the certificate of occupancy for the building
in which the premises are located; (ii) Landlord has received no notice from
any governmental authority that the premises are in violation of law; (iii) all
known defects in the premises, if any, have been disclosed to Tenant; and (iv)
Landlord has not received any notice that the sprinkler system at the premises
is in violation of law or
30
<PAGE> 37
insurance company requirements.
Except as set forth in the preceding paragraphs of this paragraph 65,
Tenant acknowledges and agrees that Landlord has not offered to do, and
shall not do or have any obligation to do, any work, repairs,
alterations, decorations, improvements, additions, changes, etc., at
or to the premises to make the same ready for Tenant's occupancy.
Tenant further acknowledges that, prior into entering into this Lease,
Tenant has had a full and fair opportunity to inspect the premises, or
Tenant has expressly waived the right to do so. Subject to Landlord's
obligations under this paragraph 65, Tenant hereby accepts the premises
in "as-is" condition.
66. CERTIFICATION BY TENANT:
Tenant hereby acknowledges that, except as may otherwise be expressly
set forth in this Lease, Landlord has made no representations, and is
unwilling to make any representations, with regard to the premises,
including the condition thereof. Tenant acknowledges it has been given
a full and fair opportunity to inspect the premises or has waived the
right to do so.
Tenant's occupancy of the premises shall be deemed a certification to
Landlord and the holder of any mortgage to which this Lease is, or
shall thereafter be, subject and subordinate, that the premises have
been delivered to Tenant in accordance with the terms of the Lease and
that possession thereof has been fully and completely accepted by
Tenant, in "as is" condition, who is then in possession of the same,
and that the term of this Lease and the use of the premises and the
date for payment of rent hereunder has commenced. Tenant shall confirm
the term of this Lease, and that rental payments have commenced (or the
date upon which they shall commence), and the other terms and
conditions of this paragraph, in writing, within fifteen (15) days of
Landlord's request. In the event Tenant fails to confirm the items
required within said fifteen (15) day period, Tenant shall be deemed to
have certified these items in accordance with Landlord's request.
67. EXHIBITS:
A. Landlord and Tenant agree that all of the terms and
conditions, restrictions and covenants contained in the
following:
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<PAGE> 38
Exhibit "A" - Location of premises within building
Exhibit "B" - Intentionally deleted prior to execution
Exhibit "C" - Covenants and Restrictions
Exhibit "D" - Covenants and Restrictions
Exhibit "E" - Department of Health Letter
are to be strictly adhered to and these Exhibits are to be
attached hereto and made a part hereof.
B. Said premises are leased subject to the same estates, interests,
liens, charges, encumbrances, mortgages, matters and defects in
Landlord's title, if any, and all easements, declarations,
agreements, rights of the way, utility easements, and covenants
and restrictions of record, including Declaration of Property
which is annexed hereto as Exhibit "C", dated May 11, 1973, and
Exhibit "D", dated November 20, 1974.
68. Landlord agrees to use reasonable efforts to obtain a non-disturbance
type agreement for the Tenant from any mortgagee of the premises (which
agreement shall substantially provide, in part, among other things,
that, provided Tenant is not in default under any of the terms and
conditions of this Lease, Tenant's occupancy of the premises shall not
be disturbed by a foreclosure of such mortgage), provided, however,
that notwithstanding the foregoing, Tenant agrees that this Lease shall
be subordinate to all mortgages in accordance with Article 7 of this
Lease. Tenant agrees to pay Landlord all expenses incurred by Landlord
in connection with Landlord's compliance with this paragraph,
including, without limitation, legal fees, processing costs, and any
other administrative expenses billed to Landlord or Landlord's agent.
Landlord's attorney's fees shall be at the rate of $200.00 per hour.
Such expenses shall constitute additional rent and shall be due upon
Landlord's demand.
69. Supplementing Article 24, in the event Landlord is unable to deliver
possession of the premises to Tenant by July 1, 2000 on or before July
15, 2000 Tenant may elect to terminate this Lease by a written notice
to Landlord sent in accordance with the provisions of this Lease which
notice shall contain a termination date which shall not be less than 15
days from the date of Tenant's notice. In the event Tenant elects to
terminate this Lease because possession of the premises was not
delivered to Tenant, and notifies Landlord in accordance with the
foregoing procedure, this Lease shall terminate on the date set forth
in Tenant's notice unless possession of the premises has been delivered
to Tenant prior to the date set forth in Tenant's notice. In the event
Tenant does not timely exercise the right herein granted to terminate
this Lease, or Landlord has
32
<PAGE> 39
delivered possession of the premises prior to the date set forth in
Tenant's termination notice, then, notwithstanding anything contained
in this Lease, this Lease shall remain in full force and effect and
binding upon the parties hereto without any further act required. In
the event Tenant terminates this Lease in accordance with the foregoing
procedure, Landlord shall have no liability whatsoever to Tenant by
reason thereof and the term hereunder shall end and expire as fully and
completely as if such date was the day herein definitely fixed for the
end and expiration of the Lease.
70. MISCELLANEOUS:
A. The parties to this Indenture of Lease further agree that the
printed form of Lease refers to a loft within the State of New
York and that accordingly whenever in the Lease reference is made
to any laws, rules or regulations of the State of New York, such
reference shall be deemed to also include and be laws, rules and
regulations of the governmental agencies having jurisdiction over
the demised premises.
B. Neither this Lease, nor any memorandum thereof, shall be recorded
by Tenant or any person or entity claiming under or through
Tenant.
C. Landlord agrees to include the name of Tenant on the building
directory.
D. In case of any conflict or inconsistency between any of the
provisions of this Rider, and the provisions of the within Lease,
the provisions of this Rider shall prevail and control.
E. All costs, charges and expenses which Tenant assumes, agrees or
is obligated to pay pursuant to this Lease shall be deemed
additional rent, and in the event of nonpayment, Landlord shall
have all of the rights and remedies with respect thereto as is
herein provided for in the case of nonpayment of Base Rent.
F. If any term, covenants or condition 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, covenant or condition to persons
or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby and each term,
covenant or condition of this
33
<PAGE> 40
Lease shall be valid and enforced to the fullest extent
permitted by law.
G. Landlord and Tenant understand, agree, and acknowledge that:
(i) this Lease has been freely negotiated by both parties; and
(ii) that, in any controversy, dispute, or contest over the
meaning, interpretation, validity, or enforceability of this
Lease or any of its terms or conditions, there shall be no
inference, presumption, or conclusion drawn whatsoever against
either party by virtue of that party having drafted this Lease
or any portion thereof.
71. Tenant shall have the right, at Tenant's sole cost and expense, to have
the point of demarcation for telephone service to the premises to be extended
from the current point of demarcation for the building in which the premises are
located to a point within the premises. Tenant agrees that such work shall in no
way interfere with the telephone service currently existing in the building.
72. Within ten (10) days of presentation of an invoice by Tenant to
Landlord, provided Tenant is not in default under the terms and conditions of
this Lease, Landlord agrees to reimburse Tenant for twenty thousand and 00/100
($20,000.00) dollars of Tenant's cost incurred in making improvements to the
premises.
IN WITNESS WHEREOF, Landlord/Owner and Tenant have
respectively signed this Lease as of the day and year first above written.
LANDLORD/OWNER: HEARTLAND ASSOCIATES
By: Gerald Wolkoff
-----------------------
Gerald Wolkoff, Partner
TENANT: eShare Technologies, Inc.
/s/
-------------------------
34
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF ESHARE TECHNOLOGIES FOR THE THREE MONTHS ENDED MARCH 31,
2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 8,344
<SECURITIES> 6,895
<RECEIVABLES> 41,491
<ALLOWANCES> 2,504
<INVENTORY> 1,924
<CURRENT-ASSETS> 61,723
<PP&E> 22,721
<DEPRECIATION> (11,950)
<TOTAL-ASSETS> 76,633
<CURRENT-LIABILITIES> 22,521
<BONDS> 0
0
0
<COMMON> 69
<OTHER-SE> 53,984
<TOTAL-LIABILITY-AND-EQUITY> 76,633
<SALES> 20,456
<TOTAL-REVENUES> 20,456
<CGS> 7,012
<TOTAL-COSTS> 7,012
<OTHER-EXPENSES> 14,841
<LOSS-PROVISION> 155
<INTEREST-EXPENSE> 8
<INCOME-PRETAX> (1,284)
<INCOME-TAX> (462)
<INCOME-CONTINUING> (822)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (822)
<EPS-BASIC> (0.04)
<EPS-DILUTED> (0.04)
</TABLE>
